LICENCE AGREEMENT EXHIBIT 10.1
between
WASP INTERNATIONAL (PROPRIETARY) LIMITED
and
TECHNOR INTERNATIONAL INC.
SCHEDULES
SCHEDULE 1 WGT SPECIFICATIONS
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1 DEFINITIONS
For the purposes of this agreement, unless the context indicates otherwise
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1.1 "Application Development" means development of applications that
interfaces with the WGT or core technology;
1.2 "the/this Agreement" means this agreement and all the schedules hereto
and any signed amendments made in accordance with 17.2 reduced to
writing from time to time;
1.3 "Core Technology" means the core code making up the essential computer
programs constituting the WGT;
1.4 "ETSI" means the European Telecommunications Standards Institute;
1.5 "EMC" means equipment manufacturers and customers, being any person
who manufactures, supplies, and shall include but not be limited to,
any GSM Network Operator who may incorporate, make use of or otherwise
exploit the WGT or any part of the WGT within its own products or
services for any commercial purpose;
1.6 "GSM" means the global system for mobile communication as defined in
the ETSI standards;
1.7 "Manufacturing Licence" means a licence to appoint a manufacturer of
certain terminal products, subject to the provisions of clause 4.2.1,
and in accordance with the Manufacturing Standards and written design
specifications as provided by Wasp;
1.8 "Manufacturing Standards" means the generally accepted manufacturing
standards applicable to electronic production, being the ISO 9000 /
9002 certification;
1.9 "Network Operators" means an operator and provider of GSM
communication systems as defined in the relevant ETSI specifications
or standards;
1.10 "RSA" means the Republic of South Africa, being the nine provinces
identified in section 103 of the Constitution of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇;
1.11 "Signature Date" means the date upon which both parties to this
Agreement have signed this Agreement or in the event of their having
signed the agreement on different dates, the date of the last
signature;
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1.12 "Sub-Licence Agreement" means an agreement for the distribution,
marketing and/or sale of the WGT, entered into between Technor and a
Sub-Licencee, incorporating, without limitation, the provisions
required by this Agreement, but no terms or conditions that are
inconsistent with any of the provisions or terms of this Agreement;
1.13 "Sub-Licencee" means an EMC with whom Technor contracts, in terms of a
Sub-Licence Agreement for the distribution, marketing and/or sale of
the WGT in accordance with the provisions or terms of this Agreement;
1.14 "Technor" means Technor International Inc, a corporation incorporated
in Nevada, United States of America having its registered office at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇;
1.15 "Territory" means the national territories of Sweden, Finland, Norway
and Denmark and any other Territories that may be so designated in
terms of this Agreement;
1.16 "VARS" means value added resellers of services, terminals and/or users
of network services who may incorporate, make use of, or otherwise
exploit the WGT or any part of the WGT within their own product or
services for any commercial purpose;
1.17 "Wasp" means Wasp International (Proprietary) Limited, Reg No
93/00271/07, a private company with limited liability incorporated
under the laws of the RSA;
1.18 "WGT" means the GSM technologies or products owned or developed by
Wasp, including but not being limited to Core Technology "(CT)"
vehicle tracking systems, terminal units, communication processes,
policy and procedures; technical information, know-how, whether or not
patented or patentable, including, without limitation, specifications,
marketing studies, physical performance and other operational
information or data relating to any part of or improvement or new
developments of the system or part of the system developed and made
available for commercial exploitation by Wasp from time to time.
2 PREAMBLE
It is recorded for the purpose of elucidating the operative provisions of
this Agreement, that it is being entered into in the following
circumstances:
2.1 Wasp is the beneficial owner of the WGT and as such has the exclusive
right to develop, market, manufacture and otherwise exploit the WGT;
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2.2 Wasp is entitled to licence rights to third parties;
2.3 Wasp desires to grant the rights recorded herein below to Technor and
Technor desires to accept such grant from Wasp;
and the parties are entering into this Agreement to give effect thereto.
3 PRIOR ARRANGEMENTS
This Agreement records that:
3.1 a "Letter of Intent and Principles for an Agreement to be finalised at
a later Date" entered into between Technor, Wasp and Matrix Vehicle
Tracking (Proprietary) Limited ("Matrix") dated December 17th 1997 was
cancelled by notice by TECHNOR to Wasp and Matrix, which cancellation
Wasp duly accepted and notified Matrix thereof;
3.2 Wasp undertakes within 14 working days of the Signature Date to take
all steps required by it as regards South African Exchange Control
and/or the Department of Trade and Industry relating to the conclusion
of this agreement by Wasp.
4 LICENCE
4.1 Subject to the terms of this Agreement, and with effect from the
Signature Date, Wasp hereby grants to Technor a non-transferable,
non-assignable exclusive licence to distribute, market, sell and to
promote the WGT in the Territory and (subject to the prior written
approval of Wasp which approval shall not be unreasonably withheld),
use any trademarks owned by Wasp.
4.2 The licence referred to in 4.1 shall :
4.2.1 include the right to appoint manufacturers in the Territory
for terminal units in terms of a Manufacturing Licence; and
4.2.2 shall be exclusive for transacting business with Network
Operators and EMC's in the Territory.
4.3 Technor shall be entitled to:
4.3.1 distribute, market, sell and promote the WGT anywhere in the
world other than within the countries South of the Sahara
within Africa;
4.3.2 appoint Sub-Licencees and or VARS to distribute, market,
sell and promote the WGT anywhere in the world (including
the
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Territory) other than within the countries South of the
Sahara within Africa in terms of a Sub-Licence Agreement
concluded or such other agreement between Technor and a VARS
to the extent that Technor may be required to comply with
local laws or regulations for the purposes of fully
exploiting the WGT;
4.3.3 rename the WGT or any part thereof in so far as Technor
requires to do so for the purposes of its business, provided
that Technor shall be solely liable and responsible for any
damage, loss or action of whatsoever nature brought against
either it or Wasp as a result of Technor so renaming the WGT
or any part thereof;
4.4 Should Technor sign a contract with a Network Operation in any country
outside the Territory or sub Saharan Africa the Territory shall be
extended to include such country provided that Wasp ratify the
substantial nature of such contract in writing. Such ratification by
Wasp shall not be unreasonable withheld or delayed. Such extension to
the Territory shall cease as at 30 June 1999;
4.5 Wasp agrees that should it enter into any negotiations which have as
the object thereof the conclusion of a contract or agreement relating
to the WGT within the countries of England, Germany, France, Italy,
and Spain within 12 months of the Signature Date, prior to the
conclusion of any such agreements Wasp shall use its best endeavors
and in good faith, enter into negotiations with Technor with the
intent of concluding such an agreement with Technor or including
Technor as a party in such agreement.
4.6 Technor shall have the right to request Wasp to undertake development
of the Core Technology on terms to be agreed between the parties on an
arms length commercial basis;
5 DURATION
This Agreement shall -
5.1 commence on the Signature Date and shall continue for a period of 25
years thereafter;
5.2 continue thereafter for further period of 5 years, provided that
either party shall be entitled to terminate this Agreement by giving
the other party at least 12 months written notice to that effect prior
to the expiry of the first 25 year period. Should such notice be given
by either party to the other, this Agreement will terminate on the
expiry of the first 25 year period.
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6 PRICE AND ROYALTY
6.1 In consideration of the rights granted by Wasp pursuant to and entry
into this Agreement by Wasp and Technor, Technor shall issue to Wasp
or as Wasp shall direct otherwise in writing, a total of 400,000 (Four
hundred thousand) shares of common stock of Technor, par value USD
0.001 per share (the "licence shares"), subject to the additional
terms and conditions, set forth on the certificates representing the
licence shares. Wasp acknowledges and agrees that such licence shares
have not been registered under the Securities Act of 1933, as amended
and may not be sold or transferred except pursuant to a registration
under the Securities Act of 1933 or exemption from registration;
6.2 Except as otherwise as provided herein no consideration or royalty
shall be payable by Technor to Wasp for the granting of this licence.
It is recorded, however, that subject to clause 7.6.2 below Technor
undertakes for the term of this Agreement to enter into an exclusive
supply agreement with Wasp in terms of which Wasp will supply to
Technor all of Technor's requirements worldwide of the WGT to be used
in connection with Wasp's GSM technology on an arm's length commercial
basis.
7 TECHNOR'S OBLIGATIONS
Technor shall -
7.1 actively and diligently promote the distribution, marketing, sale and
promotion of the WGT in the Territory and in the countries of England,
Germany, France, Italy, and Spain where, in terms of 4.1 it is
entitled to so distribute, market, sell and promote the WGT;
7.2 ensure that any person appointed by Technor in terms of a
Manufacturing Licence conforms with the Manufacturing Standards;
7.3 furnish Wasp with such written reports as may be reasonably required
by Wasp from time to time to keep Wasp fully informed of all relevant
market conditions affecting the manufacture, sale and demand for the
WGT in the Territory and the countries of England, Germany, France,
Italy, and Spain or any other region where, in terms of clause 4.1
Technor is entitled to distribute, market, sell and promote the WGT;
7.4 promptly bring to the attention of Wasp any improper or wrongful use
of any of Wasp's intellectual property rights which come to Technor's
attention;
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7.5 at Wasp's sole cost and expense, assist Wasp insofar as Technor is
reasonably able, in taking all steps to defend any infringement of
Wasp's intellectual property or other rights;
7.6 not, without obtaining Wasp's prior written consent, -
7.6.1 make any modification, improvement or other change of any
nature whatsoever to the Core Technology, the WGT or any
other Wasp related product;
7.6.2 manufacture, stock, sell, advertise or be engaged or
interested (directly or indirectly) at any time during the
period of the Agreement in the production, marketing,
distribution and/or sale of any goods which are similar to
or may be used as a substitute for or otherwise compete with
the WGT, save to the extent that Wasp is not able within the
terms and conditions of a long-term supply agreement
conclude between Wasp and Technor to provide Technor's
requirements in respect of the WGT, in which case and then
only for so long as Wasp is unable to so provide Technor's
requirements, Technor shall not be restricted in the
procurement of such competitive goods or products;
7.6.3 dispute or assist anyone else in disputing the validity of
any trade ▇▇▇▇, patent, design or copyright used in
connection with the WGT at any time during the period of
this Agreement or after its termination for any reason;
7.6.4 other than as provided for in clause 4.1 above, use or
profess any association or connection with any Wasp
trademark or other Wasp intellectual property;
7.6.5 at any time during the period of this Agreement or after its
termination for any reason engage in any policy or practice
which will be injurious to Wasp or the WGT.
8 MODIFICATIONS AND IMPROVEMENTS
8.1 Should Technor during the currency of this Agreement become aware of
any modifications and/or improvements in and to the WGT, Technor shall
promptly furnish Wasp with full details of such modifications and
improvements, modifications which shall automatically become part of
the WGT subject to and incorporated in this Agreement;
8.2 All proprietary rights and interests vesting in any improvements,
developments or advances in regard to the WGT shall be the sole and
exclusive property of Wasp, irrespective of whether or not such
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improvements, developments and/or advances were conceived of,
developed and/or effected by Wasp or not. All intellectual property
rights in and to such developments, improvements and/or advances shall
vest in Wasp absolutely and as sole beneficial owner thereof.
8.3 If and when so required by Wasp, and at the expense of Wasp, Technor
shall apply or join in applying for the registration in the name of
Wasp of appropriate protection in respect of any developments,
improvements and/or advances which may be effected to the WGT.
8.4 This Agreement serves as an automatic assignment by Technor to Wasp of
all rights all developments, improvements and advances effected to the
WGT during the currency of this Agreement.
8.5 Nothing in this Agreement shall restrict or be construed as a
restriction of Technor's right to undertake Application Development in
the course of use of or deployment of the WGT in pursuit of Technor's
business and such developments shall belong to Technor.
9 CONFIDENTIALITY
The parties shall keep confidential all proprietary information furnished
by each other with respect to any information and/or the WGT, subject to
disclosure as may be required by applicable law or in connection with legal
or judicial proceedings (including, without limitation, any proceedings for
the enforcement of this Agreement or any related agreements).
10 WARRANTIES
Wasp warrants and represents to Technor as at the Signature Date of this
Agreement that :
10.1 to the best of its knowledge and belief, the WGT does not infringe any
existing intellectual property rights;
10.2 Wasp has rights to the WGT, free and clear of all liens, charges and
encumbrances and that Wasp has outside of sub-Saharan Africa as
defined in 4.3.1 not previously assigned, transferred or conveyed any
rights to or in the WGT to any other person;
10.3 has the power and authority to execute this Agreement and to implement
the Agreement, and save for that disclosed in clause 3.2 above, will
not conflict with or violate any agreement or law of the RSA or the
shareholder agreements or articles of association of Wasp to which
Wasp or any of its shareholders is a party or by which Wasp or any of
its shareholders or their respective assets are bound;
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10.4 there is no litigation pending, or to the knowledge of Wasp
threatened, with respect to the ownership of or rights to the WGT;
10.5 save for clause 3.2, no governmental consents or filings are required
with respect to the execution, delivery and performance of the
Agreement;
10.6 subject to clause 11.3, the WGT will perform in accordance with its
specifications (as notified by Wasp from time to time in writing to
Technor, a copy of which specifications applicable at the Signature
Date is annexed hereto marked Schedule 1) if used in conjunction with
products which comply with the Wasp product specifications.
11 EXEMPTIONS
11.1 Wasp does not represent or warrant that the rights granted by it to
Technor in terms of this Agreement (or by Technor to any person
appointed by Technor in terms of this Agreement) will not infringe any
patent, trade ▇▇▇▇ or design registered in the Territory or in any
other region, but it does warrant that it has no knowledge of any such
conflicting patent, trade ▇▇▇▇ or design. Technor shall accordingly
not make, nor permit any person appointed by it in terms of this
Agreement, to make any warranty representing the proprietary
information of the WGT or any Wasp product inconsistent or contrary to
the provisions of this clause.
11.2 Accordingly, if the appointment of a manufacturer by Technor, sale or
use of the WGT or any Wasp product by Technor or any person whatsoever
(including but not being limited to any EMC) results in any claim
against Technor or any person appointed by Technor in terms of this
Agreement for an infringement of any patent, trade ▇▇▇▇ or design
registered in the Territory or any other region, Technor shall be
solely liable therefor and hereby indemnifies Wasp and hold it
harmless against any claim flowing from or in any way connected with
any such infringement.
11.3 Wasp does not warrant that the WGT is capable of commercial
exploitation in the Territory or in any other region and the risk
thereof is assumed solely by Technor and any other person appointed by
it in terms of this Agreement.
11.4 The warranties set forth in clause 10 as regards the WGT or any part
thereof, or any trademark, including but not being limited to the
design, value, efficacy, merchantability or fitness for purpose use of
the WGT, shall not apply to or operate in favour of any person save
Technor. Wasp neither assumes nor authorises any person whatsoever to
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assume any other liability or responsibility in connection with the
sale or use of the WGT.
11.5 Notwithstanding any other provisions in this Agreement to the
contrary, Wasp shall not be liable for any loss of profit or other
special damages or any indirect or consequential damages whatsoever
which Technor or any other party appointed by Technor in terms of this
Agreement may suffer as a result of any breach of this Agreement by
Wasp.
12 BREACH
12.1 Should either party commit a breach of this Agreement and fail to
remedy that breach within 7 days after receipt from the other party of
written notice calling upon it so to do, then the party aggrieved by
that breach shall be entitled, in addition to and without prejudice to
any right it may have as a result of that breach, either to -
12.1.1 enforce the performance of the terms hereof; or
12.1.2 if the breach is a breach of any warranty referred to in
clause 10 or any other material breach, cancel this
Agreement and recover such damages as it may have sustained.
12.2 The parties' remedies under clause 12.1.1 shall not be exhaustive and
shall be in addition and without prejudice to any other remedies they
may have whether for damages or otherwise.
13 ARBITRATION
13.1 Any dispute between the parties in regard to any matter arising out of
this Agreement or its interpretation or their respective rights and
obligations under this Agreement or its cancellation or any matter
arising out of its cancellation, shall be submitted to and decided by
arbitration.
13.2 There shall be 1 arbitrator who shall be, if the question in issue is
-
13.2.1 primarily an accounting matter, an independent chartered
accountant;
13.2.2 primarily a legal matter, an advocate or attorney with at
least 10 years experience;
13.2.3 primarily a technical matter, a suitably qualified person;
13.2.4 any other matter, a suitably qualified person.
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13.3 The appointment of the arbitrator shall be agreed upon between the
parties, but failing agreement between them within a period of 14 days
after the arbitration has been demanded, either of the parties shall
be entitled to request the chairman for the time being of the
Johannesburg Bar Council to make the appointment and, in making his
appointment, to have regard to the nature of the dispute.
13.4 Subject to the other provisions of this clause 13, each arbitration
shall be held in Johannesburg in accordance with the provisions of the
Arbitration Act, 1965, as amended.
13.5 The decision of the arbitrator shall be final and binding on the
parties, and may be made an order of any Court of competent
jurisdiction. Each of the parties hereby submits itself to the
jurisdiction of the Witwatersrand Local Division of the High Court of
South Africa should the other party wish to make the arbitrator's
decision an order of that court.
14 GOVERNING LAW AND JURISDICTION
14.1 The validity of this Agreement, its interpretation, the respective
rights and obligations of the parties and all other matters arising in
any way out of this undertaking or its performance shall be determined
in accordance with the laws of the RSA.
14.2 The parties hereby consent and submit to the jurisdiction of the
Witwatersrand Local Division of the High Court of the Republic of
South Africa for the purposes of all or any legal proceedings arising
from or concerning this Agreement.
15 DOMICILIUM AND NOTICES
15.1 Each party chooses the address set out below as the address at which
all notices and other communications must be delivered for the
purposes of this Agreement -
15.1.1 Wasp : ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
Telefax Number :(011) 622-8973
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15.1.2 Technor: at:Satraangsvagen ▇▇,
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇
Telefax Number : 8 544 90005
16 Any notice or communication required or permitted to be given in terms of
this Agreement shall be valid and effective only if in writing but it shall
be competent to give notice by telefax with receipt confirmed.
16.1 Any notice to a party contained in a correctly addressed envelope and
16.1.1 sent by prepaid registered post to it at its chosen address;
or
16.1.2 delivered by hand to a responsible person during ordinary
business hours at its chosen address;
16.1.3 shall be deemed to have been received, in the case of clause
16.1.1.1, on the 14th business day after posting (unless the
contrary is proved) and, in the case of clause 16.1.1.2, on
the day of delivery.
16.2 Any notice sent by telefax to a party at its telefax number shall be
deemed (unless the contrary is proved) to have been received -
16.2.1 if it is transmitted during normal business hours, within 2
hours of transmission;
16.2.2 if it is transmitted outside normal business hours, within 2
hours of the commencement of normal business hours on the
first business day after it is transmitted.
16.3 Each party chooses the physical address set out opposite its name in
clause 15.1 as the address at which legal process must be delivered
for the purpose of this Agreement.
16.4 The parties shall be entitled at any time to change their addresses
for the purposes of this clause 15.1 to any other address in the RSA
by giving written notice to that effect to the other.
17 GENERAL
17.1 Any latitude or extension of time which may be allowed by any party
shall not under any circumstances whatsoever act as an estoppel or be
a waiver of that party's rights hereunder.
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17.2 No alteration or variation to, or consensual cancellation of, this
Agreement shall be of any force or effect unless it is recorded in
writing and signed by both parties to this Agreement.
17.3 The parties to this Agreement undertake to treat all matters relating
to this Agreement and the annexures hereto as being confidential and,
therefore, shall not, without the written approval of the others,
disclose the provisions hereof to any third party.
17.4 This Agreement constitutes the entire contract between the parties and
no other conditions, warranties, guarantees and representations shall
be of any force or effect other than those which are included herein.
17.5 All the transactions and arrangements contemplated in this Agreement
constitute one indivisible transaction.
18 INTERPRETATION
18.1 In this Agreement, unless the context requires otherwise -
18.1.1 words importing any one gender shall include the other two
genders;
18.1.2 the singular shall include the plural and vice versa;
18.1.3 a reference to natural persons shall include created
entities (corporate and unincorporate) and vice versa.
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18.1.4 The headings in this Agreement have been inserted for
convenience only and shall not be used for nor assist or
affect its interpretation.
SIGNED at on 1998
For: WASP INTERNATIONAL (PTY) LTD
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Signatory:
Capacity:
Authority:
SIGNED at on 1998
For: TECHNOR INTERNATIONAL INC.
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Signatory:
Capacity:
Authority: