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EXHIBIT 10.7
LICENSING AGREEMENT
THIS LICENSING AGREEMENT (the "AGREEMENT") is entered into
effective as
of October 30, 2007, between ACUNETX, INC., a Nevada corporation
("ACUNETX"),
and VISIONETX, INC., a Nevada corporation ("VISIONETX").
EXPLANATORY STATEMENT
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A. VisioNetx is a majority owned subsidiary of AcuNetx that was
formed
primarily to develop, have manufactured and market certain
patented and patent
pending devices for the non-invasive testing to detect
impairment in humans in
the workplace under the trade names SafetyScanTM and
ClearCheckTM and to assist
law enforcement in detecting impairment and to assist in the
training of law
enforcement personal under the trade name HawkEyeTM.
B. In January, 2007 AcuNetx, transferred its patent pending
numbered
11/398009 entitled Image-Based System To Observe and Document
Eye Responses and
patent pending numbered 11/445600 entitled Image Protractor for
Standardized
Field Sobriety Test Headset Unit regarding the HawkEyeTM devices
together with
all design, development, documentation and inventory regarding
the HawkEyeTM
devices to VisioNetx and VisioNetx agreed to be responsible for
the outstanding
accounts payable regarding the HawkEyeTM. The two foregoing
patents pending and
all design, development, documentation and inventory regarding
the HawkEyeTM
devices are collectively referred to as the "VISIONETX HAWKEYE
PATENTS".
C. VisioNetx desires to license its VisioNetx HawkEye Patents
to
ACUNETX for further development, manufacturing and
marketing.
NOW THEREFORE, in consideration of the foregoing Explanatory
Statement,
which is made a substantive part of this Agreement and the
promises, covenants
and representations made herein and other good and valuable
consideration, the
receipt and sufficiency of which is hereby acknowledged, it is
agreed as
follows:
ARTICLE 1
TERM
1.1 TERM. This Agreement shall become effective upon execution
and
shall continue in full force and effect for ten (10) years,
unless sooner
terminated in accordance with its terms. This Agreement shall be
renewed
automatically for additional five (5) year terms at the
expiration of each
preceding term unless ACUNETX notifies VisioNetx, in writing,
within thirty (30)
days prior to the renewal date, that it elects not to renew.
1.2 PRIOR TERMINATION. Anything contained in Section 1.1 above
to the
contrary notwithstanding, this Agreement may be terminated and
the obligations
of the parties hereunder shall thereupon cease, upon the
occurrence of the
following:
(a) VisioNetx may elect to terminate this Agreement by
providing ACUNETX with ninety (90) days notice in writing in the
event ACUNETX
fails to substantially perform its duties hereunder. ACUNETX
shall have the
right to cure such non-performance
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within ninety (90) days of such Default Notice and if ACUNETX
cures such
non-performance within the ninety (90) day period, this
Agreement shall remain
in full force and effect.
(b) VisioNetx may also elect to terminate this Agreement within
one
hundred and eighty (180) days from seven (7) years of the date
of this Agreement
if ACUNETX does not commercialize devices substantially
utilizing the VisioNetx
HawkEye Patents and receive a minimum of $500,000 of cumulative
gross revenue
within seven (7) years of the date of this Agreement.
ARTICLE 2
LICENSE OF VISIONETX HAWKEYE PATENTS
2.1 LICENSING. In consideration of the payments to be made
in
accordance with this Agreement, VisioNetx hereby grants to
ACUNETX an exclusive,
transferable (with the right to sublicense) license to use the
VisioNetx HawkEye
Patents in relation to the development, manufacturing, marketing
and servicing
of devices in the United States and worldwide. The license
rights shall include
the right to use and further develop technology included in the
VisioNetx
HawkEye Patents.
2.2 LICENSE RESTRICTIONS. Except as otherwise expressly
authorized in
writing by VisioNetx, ACUNETX shall not use the VisioNetx Patent
other than in
accordance with the provisions of this Agreement.
2.3 DURATION. This Agreement and the licenses hereby granted
shall
commence on the date of counter-signature by VisioNetx of this
Agreement and
shall continue in force for the term as set forth in Article
1.
2.4 OWNERSHIP OF THE VISIONETX HAWKEYE PATENTS.
(a) VISIONETX PATENT OWNER. VisioNetx is the owner of the
VisioNetx HawkEye Patents. VisioNetx is not aware at the date
hereof that the
VisioNetx HawkEye Patents or the use of it infringes the rights
of any third
party but gives no warranty in relation thereto, nor as to the
validity of any
applications.
(b) REPRESENTATIONS AS TO VISIONETX HAWKEYE PATENTS.
VisioNetx
represents that the VisioNetx HawkEye Patents are valid patents
pending as filed
and registered with the U.S. Patent Office.
(c) NO WARRANTY. THE VISIONETX HAWKEYE PATENTS ARE PROVIDED
TO
ACUNETX "AS IS" AND WITHOUT WARRANTY OF ANY TYPE OR KIND.
VISIONETX HEREBY
DISCLAIMS ANY AND ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR
IMPLIED,
INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY FOR A
PARTICULAR PURPOSE, AND ANY WARRANTY OF NON-INFRINGEMENT OF
THIRD PARTY RIGHTS
EXCEPT THAT VISIONETX WARRANTS ONLY THAT THE VISIONETX HAWKEYE
PATENTS ARE VALID
PATENTS PENDING AS FILED AND REGISTERED WITH THE U.S.
2
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PATENT OFFICE AND THAT IT IS NOT AWARE AT THE DATE HEREOF OF ANY
THIRD PARTY
CLAIM THAT THE VISIONETX HAWKEYE PATENTS OR THE USE OF THEM IN
RELATION TO THE
HAWKEYETM DEVICES INFRINGES THE RIGHTS OF SUCH THIRD PARTY OR
PARTIES.
(d) NO CONTEST TO VISIONETX HAWKEYE PATENTS. During the term
of this Agreement and thereafter, ACUNETX undertakes not to do
or permit to be
done any act which would or might jeopardize or invalidate the
VisioNetx HawkEye
Patents, nor any application and/or registration thereof, nor do
any act which
might prejudice the right of VisioNetx to the VisioNetx HawkEye
Patents.
Furthermore, ACUNETX will not object to or otherwise contest
VisioNetx's
exclusive right, title and interest in and to, or the validity
of, the VisioNetx
HawkEye Patents, subject to this Agreement.
(e) ACLNETX ASSISTANCE IN MAINTAINING VISIONETX HAWKEYE
PATENTS. ACUNETX shall on request give to VisioNetx or its
authorized
representative any information as to its use of the VisioNetx
HawkEye Patents
which VisioNetx may reasonably require.
2.5 INFRINGEMENTS.
(a) INFRINGEMENTS OF THE VISIONETX PATENT. ACUNETX shall
immediately notify VisioNetx in writing if ACUNETX becomes aware
of any
unauthorized use, or proposed unauthorized use, by any person of
a possible
infringement of the VisioNetx HawkEye Patents, and grants
ACUNETX the right to
take such action, at ACUNETX's own expense, and by attorneys of
ACUNETX's
choice, as ACUNETX in its sole discretion may deem advisable,
including the
right to sue for infringement of ACUNETX's license rights
pursuant to this
Agreement. Any such action taken by ACUNETX may be taken in the
name of
Visi
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