ASSISTANCE SERVICES AGREEMENT
EXHIBIT
10.4
THIS
ASSISTANCE SERVICES 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 Xxxx Xxxxxx 00, 0000 XX Xxxxxxxxx, 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 0000 X. Xx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx,
00000 (“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
Assistance Service Agreement sets forth the additional terms under which NXP
Software shall provide Internet based Assistance Services for use with NXP
SOFTWARE’s GPS technologies to LBT.
SECTION
1.0 – FRAMEWORK AGREEMENT
The terms
of the Framework Agreement shall apply to this Assistance Service Supplemental
Agreement (the “Supplemental 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 Assistance Service
Agreement shall prevail for the exclusive and limited scope of this
Assistance Service Agreement.
1
ARTICLE
2.0 - ASSISTANCE SERVICES; LIMITED SERVICE LICENSE
2.1 Service
Provision. Subject to LBT’s payment of the Service Fees and
during the term of this Assistance Services Agreement, NXP SOFTWARE shall use
commercially reasonable efforts to provide the Assistance Services to LBT for
the exclusive use of the Assistance Services with the Products.
2.2 Internet
Delays. NXP SOFTWARE’s ASSISTANCE SERVICES MAY BE SUBJECT TO
LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND
ELECTRONIC COMMUNICATIONS. NXP SOFTWARE IS NOT RESPONSIBLE OR LIABLE
FOR ANY DELAYS, SERVICE FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH
PROBLEMS.
2.3 Failure of Third
Parties. NXP SOFTWARE’S ASSISTANCE SERVICES ARE DEPENDENT UPON
THIRD PARTIES’ DELIVERIES AND SERVICES. NXP SOFTWARE IS
NOT RESPONSIBLE OR LIABLE FOR ANY DELAYS, SERVICE FAILURES, OR OTHER DAMAGES
RESULTING FROM THE FAILURE OF THIRD PARTIES TO DELIVER THESE DELIVERIES AND/OR
TO PERFORM THESE SERVICES.
2.3 Service
License. Subject to the terms and conditions of this
Assistance Service Agreement, NXP SOFTWARE hereby grants to LBT, and LBT hereby
accepts from NXP SOFTWARE, a non-exclusive, personal, non-transferable worldwide
usage license, without the right to sublicense, to the Assistance Services
(hereafter the “Licensed Services”), to:
(i) use
the Licensed Services to implement a Cached Proxy Assistance
Service;
(ii) use the
Cached Proxy Assistance Service for exclusive use in conjunction with the
Licensed Technology in Products;
(iii) use the Cached
Proxy Assistance Service for maintaining and supporting its Products with the
integrated Licensed Software including, but not limited to:
a. performing
error-correction and Customer support on said Products;
b. testing and
evaluating the (performance of) the Licensed Software; and
c. training its
(support) engineers;
2.4 No Other Rights or
Licenses. Other than the limited usage license granted to LBT
under section 2 herein, no other rights or 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 Assistance
Service of the Licensed Technology.
2.5 End User Use by Cached
Proxy. It is agreed by the Parties that End Users shall not
directly access the Licensed Services. LBT shall take sole
responsibilities for implementing and maintaining a Cached Proxy Assistance
Service.
2
2.6 Service
Level. NXP SOFTWARE shall use all reasonable commercial
efforts to ensure that the Assistance Services do not experience more than four
(4) Service Outages in any calendar year. Any Service Outage shall
not exceed four (4) hours in duration.
2.7 Scheduled
Downtime. NXP SOFTWARE reserves the right to schedule and
carry out Service Maintenance Downtimes for the Assistance Service for the
purposes of maintenance and upgrade. In the event that NXP SOFTWARE
must carry out a Service Maintenance Downtime and prior to it being carried out,
the Parties shall agree in good faith a suitable time for such Service
Maintenance Downtime.
2.8 No End User
License. This Agreement shall not grant any license whatsoever
to any End User.
ARTICLE
3.0 - SERVICE FEES
In
consideration of the Services (to be) provided under this Assistance Services
Agreement, LBT shall pay to NXP SOFTWARE the non-refundable Service Fees as set
forth in Xxxxxxx XX0. In the event that parties wish to continue this
Services beyond the timeframe stipulated in Exhibit SA1, the parties shall enter
into negotiations to agree upon the new Service Fees and upon agreement of the
new Service Fees shall execute an appropriate amendment to this Assistance
Services Agreement to cover the extended period for which the Assistance
Services shall be continued.
ARTICLE
4.0 - DURATION AND TERMINATION
4.1 Duration. This
Assistance Service Agreement shall become effective as of the date that the
Framework Agreement will become effective and shall remain in force for as long
as the Framework Agreement remains effective unless parties explicitly agree
otherwise.
4.2 Termination. LBT
may terminate this Assistance Services Agreement by serving a minimum of thirty
(30) days notice to NXP SOFTWARE prior to the next Service Fee Due
Date. Such termination shall come into effect at the next Service Fee
Due Date.
ARTICLE
5.0 – INTELLECTUAL PROPERTY RIGHTS
5.1 Ownership of Assistance
Service. NXP Software, its Affiliates licensors or suppliers
shall retain all right, title and interest, including all related Intellectual
Property Rights, in and to the Assistance Service and the Service
Infrastructure.
5.2 No Offer of
Sale. This Assistance Service does not, and shall not be
construed to , grant any license, right or title in, nor offer for sale, or
otherwise transfer, the Assistance Service, Licensed Technology or Service
Infrastructure, or any part thereof, to LBT or any other third
party.
3
ARTICLE
6.0 – SERVICE INTEGRATION SUPPORT
6.1 Integration
Support. NXP SOFTWARE shall provide email and telephone based
technical support during the UK working hours of 9am GMT to 5pm GMT to LBT for
the limited purpose of integration of the Assistance Service from the Effective
Date until 1st May 2008.
IN
WITNESS WHEREOF, the parties have executed this Supplemental Agreement by their
duly authorized officers as of the Effective Date.
| LOCATION BASED TECHNOLOGIES INC. | NXP SOFTWARE B.V. | |||
|
By:
/s/ Xxxxxx X. Xxxxxxx
|
By:
/s/ Xxxxxx Xxxxxx
|
|||
|
Name:
Xxxxxx X. Xxxxxxx
|
Name:
Xxxxxx Xxxxxx
|
|||
|
Title:
Chief Development Officer
|
Title:
Financial Director
|
|||
| Date: February 28, 2008 | Date: 29 February 2008 |
|
Address
for notices:
|
By:
/s/ X. X. Xxx Xxxxxx
|
|||
|
|
Name:
X. X. Xxx Xxxxxx
|
|||
|
Location
Based Technologies Inc.
|
Title:
Director
|
|||
| 0000 X. Xx Xxxxx Xxxxxx | Date: 29 February 2008 | |||
| Xxxxxxx | ||||
| Xxxxxxxxxx 00000 | By: /s/ P.H.J. Xx Xxxxxx | |||
| United States |
Name:
P.H.J. Xx Xxxxxx
|
|||
|
Fax
no: x0 (000) 000-0000
|
Title:
Director
|
|||
| Date: 29 February 2008 | ||||
| Address for notices: | ||||
| Attention: Xxxxxx Xxxxxx | ||||
| NXP Software X.X. | ||||
| Xxxx Xxxx Xxxxxx 00 | ||||
| 0000 XX | ||||
| Eindhoven | ||||
|
Fax
no: x00 00 00 00000
|
4
EXHIBIT
SA1
Description of Assistance
Services
The
Assistance Service is described in the Arikara Product Specification v1.0
§3.2
The
Assistance Service is designed to provide this assistance data to LBT’s server
which shall cache this data and provide it LBT’s Products as
required.
LBT’s
server shall connect to the Assistance Server periodically to update the
assistance data that is has within its cache (hereafter the “Cache Update
Period”). The Cache Update Period shall be no more frequently than
five (5) minutes.
Service
Fees
The
Service Fees are paid on a pre-payment basis on calendar quarters according to
the following schedule:
|
Calendar
Quarter
|
Service Fee Due
Date
|
Service
Fee
|
|
|
Q2/2008
|
1st
April 2008
|
EUR
|
20,000.00
|
|
Q3/2008
|
1st
July 2008
|
EUR
|
30,000.00
|
|
Q4/2008
|
1st
October 2008
|
EUR
|
40,000.00
|
|
Q1/2009
|
1st
January 2009
|
EUR
|
40,000.00
|
|
Total
|
EUR
|
130,000.00
|
|
