EXHIBIT
10.2
TECHNOLOGY
LICENSE AND DISTRIBUTION AGREEMENT
THIS
TECHNOLOGY LICENSE AND DISTRIBUTION AGREEMENT IS MADE AND
ENTERED INTO AS OF THE EFFECTIVE DATE BY AND
BETWEEN:
1.
NXP SOFTWARE B.V., a private company with limited liability
incorporated under the laws of the Netherlands, having its
registered office in Eindhoven, the Netherlands, with
registration number 17192886 in the trade register of the
Netherlands Chamber of Commerce and Industry for Oost-Brabant,
having a principal place of business at High Tech Campus 41,
5656 AE Eindhoven, the Netherlands (“NXP
SOFTWARE”); and
2.
LOCATION BASED TECHNOLOGIES INC., a company incorporated
in the state of Nevada, having its principal place of business
at 4989 E. La Palma Avenue, Anaheim, California, 92807
(“LBT”).
WHEREAS:
A.
NXP SOFTWARE develops and licenses, amongst others, real-time
software GPS technologies;
B.
NXP SOFTWARE provides, amongst others, Internet-based
GPS assistance services;
C.
LBT develops GPS based consumer products for locating
persons and/or items;
D.
NXP SOFTWARE is willing to provide licenses and services
for use of its software GPS technologies by LBT in some or all
of their consumer GPS-based products;
E.
The Parties have executed a Framework Agreement
that sets forth the principal terms under which the parties
shall conduct business;
F.
This Technology License and Distribution Agreement sets forth
the additional terms under which NXP Software shall license
the Technology to LBT.
SECTION
1.0 – FRAMEWORK AGREEMENT
The
terms of the Framework Agreement shall apply to this
Technology License and
Distribution Agreement mutatis
mutandis. In the event that any term or clause
herein shall be in conflict with any term or clause within the
Framework Agreement then the terms of this Technology License
and Distribution Agreement shall prevail for the exclusive and
limited scope of this Technology License and
Distribution Agreement.
SECTION
2.0 – LIMITED LICENSE
2.1
License to
Licensed Technology . Subject to the terms
and conditions of this Agreement, NXP SOFTWARE hereby grants
to LBT, and LBT hereby accepts from NXP SOFTWARE, a
non-exclusive, personal, non-transferable worldwide copyright
license, without the right to sublicense, to:
(i) test
or evaluate the Licensed Technology;
(ii) use
and reproduce the Licensed Technology for integration of the
Licensed Software, in Object Code form only, in the
Products;
(iii) test,
evaluate, market, demonstrate, promote, lend, give or sell
these Products, to (potential) Customers;
(iv) distribute
these Products with the Licensed Technology integrated therein
to Customers;
(v) use
the Licensed Technology for maintaining and supporting its
Products with the integrated Licensed Technology including,
but not limited to:
a.
performing error-correction and Customer support on said
Products;
b.
testing
and evaluating the (performance of) the Licensed Technology;
and
c.
training its (support) engineers;
(vi) use
the Documentation only within LBT’s organization solely
in connection with the rights granted above; and
(vii) copy,
modify and create derivative works from the Documentation, for
example by creating technically accurate subsets and supersets
thereof or translations it into other languages; and
distribute such Documentation (in its original form or as
modified by LBT as provided above) with the Products
distributed by LBT as permitted under this
Agreement.
2.2.
Exclusive Use of
Licensed Technology with Assistance Service
. The license granted hereunder is granted solely
for the use of the Licensed Technology in
connection with the Assistance Services to be provided by NXP
Software to LBT in accordance to the Assistance Services
Agreement. No license is granted whatsoever for use
of the Licensed Technology without the Assistance Services
provided by NXP Software. In the event LBT does not
exclusively uses or ceases to exclusively use NXP
Software’s Services in accordance to the Assistance
Services Agreement the license granted hereunder will
terminate with immediate effect.
2.3
Beneficiaries
.
2.3.1 Contractors
It is agreed that the rights granted to LBT under sections 2.1
(i), (ii), (iii), (v), (vi) and (vii) above shall inure also
to the benefit of any Contractor engaged by LBT but only to
the extent and for the time of their involvement as regards
LBT’s Products.
2.3.2 Distributors. It
is agreed that the rights granted to LBT under sections 2.1
(iii) and (iv) above shall inure also to the benefit of any
Distributor engaged by LBT but only to the extent and for the
time of their involvement as regards LBT’s
Products.
2.3.3 Third
Party Compliance. LBT shall remain responsible for
the due and proper compliance with the terms and conditions of
this Technology License and Distribution Agreement by each
Contractor, Distributor and Customer and acknowledges that it
may be held liable to NXP SOFTWARE for damages incurred by NXP
SOFTWARE to the extent caused by any such non-compliance
therewith.
2.4
Third Party
Beneficiary . LBT will make sure that in its
agreements with Contractors and Distributors NXP Software will
be appointed as a third party beneficiary in such a way that
NXP Software will be granted the same rights as LBT as regards
claim towards the LBT’s Contractors and Distributors if
they breach their agreements with LBT.
SECTION
3.0 - LICENSE RESTRICTIONS.
3.1
Restrictions
. The Licensed Technology is licensed (under
copyright only) and is not sold. Except as
expressly permitted under Section 2.0 or by mandatory
applicable law in spite of this provision, LBT agrees not to,
and agrees not to permit any third party to:
(i) copy,
reproduce or distribute Licensed Technology;
(ii) assign,
sublicense, lease, rent, loan, transfer, disclose, or
otherwise make available the Licensed Technology;
(iii) modify,
adapt, alter, translate, or create Modifications from any
portion of the Licensed Technology;
(iv) Reverse
Engineer the Licensed Technology;
(v) otherwise
produce its own version of the Licensed Technology (without
copying the Source Code thereof); and
(vi) remove
or circumvent the protection of the Licensed
Technology.
3.2
No Other Rights
or Licenses . Other than the rights
explicitly granted to LBT under the Agreement, no other
licenses are granted, or implied by estoppel or otherwise,
under any Intellectual Property Rights of NXP SOFTWARE and/or
its Affiliates or any intellectual property residing in the
Licensed Technology or any other Confidential Information
furnished by NXP SOFTWARE.
3.3
Exclusions
. Notwithstanding anything to the contrary herein,
this Agreement shall not be construed or interpreted
as:
(i) imposing
on NXP SOFTWARE and/or its Affiliates or any of its or their
third party suppliers any obligation to furnish any
manufacturing or technical information except as expressly
required under this Agreement; or
(ii) conferring
any license, right or immunity, either directly or indirectly,
to LBT or to any third party acquiring any Licensed Technology
or other Confidential Information furnished by NXP SOFTWARE or
any of its Affiliates under any of its and/or their
Intellectual Property Rights or under any other intellectual
property residing in the Licensed Technology or any other
Confidential Information furnished by NXP SOFTWARE: (a) for
the combination of such Licensed Technology or other
Confidential Information with one or more other items
(including items acquired from NXP SOFTWARE and/or its
Affiliates) even if such items have no substantial use other
than as part of such combination; (b) covering a Technical
Standard, whether proprietary or open; or (c) with respect to
which NXP SOFTWARE and/or any of its Affiliates has informed
LBT or has published (in a quotation, datasheet, term sheet or
memorandum of understanding concerning the Licensed Technology
or elsewhere) a statement that a separate License has to be
obtained and/or that no implied license is
granted.
3.4
Open
Source License Terms . The license granted
hereunder does not include any right, license, power or
authority to subject the Licensed Technology (or a part
thereof) to Open Source License Terms. LBT
expressly agrees that it shall not perform any actions with
regard to the Licensed Software in a manner that would require
the Licensed Technology, or any derivative work thereof to be
licensed under Open Source License Terms. These
actions include but are not limited to:
(i) combining
(a part of) the Licensed Technology (or a part thereof) or a
derivative work thereof with Open Source Software, by means of
incorporation or linking or otherwise; or
(ii)
using Open Source Software to create a derivative work of (a
part of) the Licensed Technology.
LBT
shall indemnify NXP SOFTWARE, its Affiliates and its third
party suppliers/licensors against and hold NXP SOFTWARE, its
Affiliates and their Suppliers harmless from any damage or
costs arising from or in connection with any violation or
breach of the provisions of this clause and LBT shall
reimburse all costs and expenses incurred by NXP SOFTWARE, its
Affiliates and their suppliers in defending any claim, demand,
suit or proceeding arising from or in connection with such
violation or breach.
3.5
No
Tradem
