EXHIBIT 10.2
SOFTWARE LICENSE AGREEMENT DATED JULY 15, 2005
<PAGE>
SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT AND LICENSE ("Agreement") is entered into as of the
15th
day of July, 2005 (the "Commencement Date")
by and between Axiometric, LLC, a
Maryland limited liability company having a
principal place of business at 10718
Vista Road, Columbia, MD 21044
("Licensor"), and Link Plus Corporation, a
Delaware corporation having a principal
office at 6996 Columbia Gateway Drive,
Suite 104, Columbia, MD 21046
("Licensee").
WITNESSETH:
WHEREAS, Licensor owns certain computer software related to
self
organizing and healing networks, data
compression, and radio performance
enhancement, and provides certain
maintenance and support services as further
described herein; and
WHEREAS, the Licensor and Licensee entered into a Letter of
Intent
dated May 3, 2005, a portion of which was
binding upon the parties, and now
desire to confirm and further describe
their relationship and the agreements
initially set forth in the binding portions
of that Letter of Intent; and
WHEREAS, this Agreement is intended to be the "IP License"
described in
the Letter of Intent.
NOW, THEREFORE, in consideration of the mutual promises
contained
herein, the fees to be paid in connection
therewith, and other good and valuable
consideration, the sufficiency of which is
hereby acknowledged, the parties
intending to be legally bound, hereby agree
as follows:
1.
DEFINITIONS
1.1 "Product" means
the computer-based system described in Schedule A
including the computer software in both the source and object
code
form, and all Documentation or any enhancements, changes,
derivative
works, improvements and other modifications.
1.2 "Copy" means an
authorized copy of the Product made by Licensee
pursuant to the terms and conditions hereof;
1.3 "Documentation"
means Product documentation as defined in schedule
A.
1.4 "Intellectual
Property Rights" means all worldwide copyright,
trade secret, know-how, trademark, service mark and patent
rights
(including rights to inventions, patent applications and
letters
patent) and all other intellectual and other property rights in and
to
the Product and Licensor's confidential information relating
thereto.
<PAGE>
1.5 "Proprietary
Notice" means a copyright notices, trademark notices,
patent markings, trade secret legends, confidentiality labels and
other
notices that Licensor uses or specifies from time to time to show
its
ownership of the Intellectual Property Rights.
1.6 "Bug" means a
significant error or set of errors in the Product
that prevent the Product from operating substantially in
accordance
with its functional specifications.
1.7 "Bug Correction"
means one or more modifications or additions that
when made or added to the Product either establishes material
conformity of the Product to its functional specifications or
eliminates the practical adverse effect of a Bug.
1.8 "New Release"
means one or more new releases, new versions and/or
major upgrades of the Product.
1.9 "Enhancement"
means any improvement, upgrade, enhancement to, of
the Product.
1.10 "Maintenance and Support Services" has the meaning set forth
in
Section 4.
1.11 "License" means the license described in paragraph 2.1.
2.
License
2.1 Subject to the
terms, conditions and limitations set forth herein,
Licensor hereby
grants to Licensee, and Licensee hereby accepts, an
irrevocable (except upon breach of this Agreement),
non-exclusive
non-assignable world wide license to (i) create products derived
from
Axiometric copyrighted software for sale to third parties. ii)
create
products that embody the attached provisional patent for sale to
third
parties. The license does not grant Licensee the right to
sub-license
the copyrighted software or patent to third parties nor allow
third
parties to create works derived from the copyrighted software
or
embodying the patent.
2.2 Under no
conditions shall the Licensee provide the source code,
design documentation, nor any other materials marked or
reasonably
understood to be Licensor proprietary and confidential materials
to
third parties without the express written consent of Licensor.
2.3 Under no
conditions shall Licensee allow third parties to adapt,
change, copy, de-compile, enhance, modify, redesign, or reverse
engineer the Product in any way.
2.4 The Product cannot
be used in Automatic Meter Reading products
except as allowed for in the Axiometric/LKPL Affiliate Agreement
or
otherwise mutually agreed to in writing.
<PAGE>
2.5 Licensee shall pay
Licensor a royalty, calculated on a quarterly
basis, at a rate of three percent (3%) of the gross sums
actually
received by the Licensee from sales of the Licensee's products
that
incorporate the Product with a minimum royalty of 50/100
Dollars
($0.50) per end-user product sold. The Licensee will pay the
royalties
until such time as the total sum of all royalties paid equals
Two
Million Dollars ($2,000,000.00) at which point the License shall
be
deemed paid in full, and the Licensee will have no further
obligation
to pay the Licensor for the License. All other terms of this
agreement
shall remain in effect after the License is paid in full.
a. The
Licensee will provide the Licensor a quarterly report
(in hard copy and electronic copy (if applicable)) showing the
number of royalty bearing units sold and sublicenses granted,
the
gross sums received from sales and sublicense fees received, a
cumulative total of royalty payments made for each royalty
bearing
product and a cumulative total of all royalty payments made
under
this Agreement.
b.
Licensor shall have the right to conduct an audit after the
end of each calendar year to verify the accuracy of the
Licensee's
quarterly royalty reports for that year, provided the audit
must
be initiated no later than June 30th of each year, and that if
no
such audit is conducted, then the quarterly reports for that
year
will be deemed accurate.
c.
In the
event the Licensor's audit shows that the number of
units actually sold by the Licensee was greater than the
number of units reported sold by the Licensee, then the
Licensee shall have the right, at the Licensee's cost, to
have its own auditor verify the Licensor's audit. If the
Licensee's audit confirms the report of the Licensor's
auditor, then the Licensee will pay the deficiency in
royalty payments within fifteen (15) days from the time
Licensor invoices for the deficient payment.
d. In the
event the Licensor's audit shows that the number of
units actually sold by
the Licensee is more than three
percent (3.0%) more than the number of units reported sold
by the Licensee, then the Licensee will have the right, at
the Licensee's cost, to have its own auditor verify the
Licensor's audit. If the Licensee's audit confirms the
report of the Licensor's auditor, then the Licensee will pay
the deficiency in royalty payments and the cost of the
Licensor's audit within fifteen (15) days from the time
Licensor invoices for those fees and provides standard proof
of the time and expenses incurred.
2.6 Licensee
acknowledges that Licensor owns all right, title and
interest in and to the Product and all Intellectual Property rights
and
the Licensee shall have only those rights expressly granted to it
under
the License and this Agreement. Licensee agrees to and shall
protect
the confidentiality of and not disclose to others any and all
confidential and proprietary information embodied in
Intellectual
Property Rights or the Product, or disclosed in the course of
Maintenance and Support Services, including maintaining intact
all
Proprietary Notices. Confidential information does not include
information that
<PAGE>
was in the public domain, not as the result of any act or omission
of
Licensee, at the time of disclosure, or information that
Licensor
approves for disclosure by written authorization. This section
2.6
shall survive any termination of this Agreement in perpetuity.
2.7 This agreement may be terminated by either party if the other
party
materially breaches any provision of this Agreement and such breach
is
not cured by the breaching party within thirty (30) days after
the
party desiring to terminate the Agreement gives the breaching
party
written notice of the breach. If the breach is not cured within
the
30-day notice period, the Agreement will terminate
automatically.
Licensor may terminate this Agreement immediately without notice
upon
the commencement of any voluntary or involuntary bankruptcy or
insolvency proceedings seeking liquidation or reorganization of
Licensee
2.8 If the Licensor
fails to timely perform its obligations or
otherwise materially breaches this Agreement, then the Licensee
will
give the Licensor notice of the breach and the reasonable actions
that
the Licensor must take to cure the breach (including a reasonable
time
by which the Licensor must complete the cure), and the Licensee
may
suspend royalty payments until such time as Licensor cures its
breach.
If the Licensor's breach is not timely cured then the Licensee
may
exercise all of the rights under the License without any obligation
to
pay royalties or any other sums to the Licensor until such time as
the
breech is remedied.
3. New
Releases
Both parties understand that the final
revisions to the Product will be
completed in the course of work conducted
during the May 9th 2005 Statement of
Work - SOW-AX1. Upon completion of a
deployable AMR Product Suite as defined in
the July 2005 Affiliate Agreement, both
parties agree to put the Product under
configuration management and designate the
release version for the Product. That
release version will constitute the Product
covered under this Agreement.
Licensor must make each new Release
available to Licensee at a cost to be
negotiated under separate agreement and the
new Releases will become a part of
the Product.
4.
Maintenance and Support Services
4.1 The Licensor shall
provide the following Maintenance and Support
Services to Licensee at no additional charge for a period beginning
on
the Commencement Date and ending 12 months after the total royalty
has
been paid in accordance with Section 2.2 (the "Initial
Period").
(a)
Startup training: Licensor will provide, on an as-needed
basis upon request by Licensee, sufficient technical support
related to the use, installation, definition, and other aspects
of the Product such that Licensee can successfully utilize the
Product. This support shall be provided to Licensee free of
charge up
<PAGE>
to 40 hrs and during regular business hours. Should additional
training be required, Licensor shall provide that at its
prevailing rates and under a contract to be negotiated
separately.
(b) Bug
Correction: Licensor
will use reasonable diligence to
correct verifiable and reproducible Bugs
