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EXHIBIT 10.5
OPTION AGREEMENT
AGREEMENT made and entered into this 22nd day of August, 2000, by and
between DSI Datotech Systems, Inc., a Vancouver corporation, having its
principal offices at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx XX, Xxxxxx X0X 0X0
("Datotech") and Biometrics Security, Inc., a State of Nevada, USA corporation,
having its principal offices at 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxx,
Xxxxxx XXX 00000 ("Biometrics Security").
WITNESSETH:
WHEREAS Datotech represents that it is the developer and the owner of the
right title and interest in and to the Technology and Existing Proprietary
Property as hereinafter defined; and
WHEREAS Biometrics Security desires Datotech to disclose the details of the
Technology to Biometrics Security to permit Biometrics Security to evaluate the
Technology and to determine whether Biometrics Security will exercise the Option
granted to Biometrics Security hereunder and enter into an exclusive License
Agreement (in the form attached hereto and made apart hereof as Exhibit A) with
Datotech for the Technology, all know-how related to the Technology and the
Existing Proprietary Property;
WHEREAS, Datotech wishes to grant Biometrics Security the sole and
exclusive Option to acquire the exclusive licensing rights for the exploitation
of the developed Technology for Licensed items within the Territory through the
License Agreement;
NOW THEREFORE, in consideration of the provisions contained herein, and of
the payment of the Option Price, the receipt and sufficiency of which is hereby
acknowledge, the undersigned agree as follows:
ARTICLE 1
DEFINITIONS
The following terms used in this Option Agreement shall have the meanings
set forth below:
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(a) "Agreement" shall mean this Option Agreement, entered into on the
date first above written.
(b) "Existing Proprietary Property" shall mean all intellectual
property rights in the Technology, including without limitation, (i) any and all
patent applications filed worldwide based upon the Technology, including any and
all continuations, divisions and continuations-in-part thereof, and all patents,
inventor's certificates, utility models and the like issuing therefrom
worldwide, including any and all re-examinations, reissues, renewals and
extensions thereof, (ii) any copyrightable or copyrighted works based upon the
Technology, including computer software and computer programs, (iii) any
confidential or proprietary know-how and information regarding the Technology,
(iv) any trademarks and trade names associated with the Technology, whether or
not registered, and (v) all fixed representations, hardware, hard copies,
computer-readable media and other tangible implementation of the Technology
(collectively, the "Proprietary Property"), patent rights, copyrights,
trademarks and trade secret rights. "Existing Proprietary Property" shall also
include patent rights in the Technology that are pending as of the date hereof.
(c) "License Agreement" shall mean the License Agreement attached
hereto and made apart hereof as Exhibit A that may be executed by the parties
hereto upon the exercise by Biometrics Security of the Option granted to
Biometrics Security hereunder.
(d) "Licensed Items" shall mean the interfaces and software for
executing banking and financial transactions, in which the Technology may be
utilized pursuant to the execution by the parties herein of the License
Agreement.
(e) "Option" shall mean the sole, transferable and exclusive Option of
Biometrics Security to acquire, for the Option Price, the exclusive licensing
rights for the exploitation of the Technology within the Territory through a
license agreement.
(f) "Option Period" shall mean the period commencing on the date
hereof and ending three months from the date when a reasonably acceptable
prototype is made available to Biometrics Security by Datotech.
(g) "Option Price" shall mean the amount of $320,000 US Dollars fully
creditable towards any amount, which may be owed to Datotech pursuant to the
execution of the License Agreement.
(h) "Prototype" shall mean a device using Datotech Technology that
will demonstrate, beyond any reasonable doubt, multi-touch gesture recognition
and individual gestures utilizing a PC system. Datotech commits to use its best
efforts to make this prototype available at a charge of $3,000,0000 US Dollars
to Biometrics Security, within 12 months of the delivery of $3,000,000 US
Dollars to Datotech. This charge of
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$3,000,000 US Dollars is fully creditable towards any amount that may be owed to
Datotech pursuant to the execution of the License Agreement.
(i) "Technology" shall mean Datotech's proprietary gesture recognition
technology ("GRT") system comprising multiple-touch sensors and related
hardware, gesture recognition algorithms and software, and user interface
designs for mapping gestures to control electronic devices, as well as
alterations, improvements, modifications and derivatives to the Technology
described herein, as well as all related software, documentation and other
materials, embodying GRT theretofore or hereafter created or developed by
Datotech.
(j) "Territory" shall mean all major markets worldwide.
(k) "Third-Party Licenses" shall mean sub-licenses granted by
Biometrics Security to third parties pursuant to the license and rights granted
to Biometrics Security by Datotech in accordance with the License Agreement.
"Third-Party Licensees" shall mean those parties to whom Third-Party Licenses
are granted in accordance with the License Agreement.
ARTICLE 2
DATOTECH OBLIGATIONS
2.1 RESEARCH AND DEVELOPMENT. Datotech shall conduct research and
development of the Technology with ultimate goal of developing the Technology
and Existing Proprietary Property for the Licensed Items and otherwise maximize
the commercial value of the Technology and Existing Proprietary Property for the
Licensed Items.
2.2 DISCLOSURE OF IMPROVEMENTS. From time to time throughout the duration
of this Option, Datotech shall disclose any and all improvements to the
Technology for Licensed Items to Biometrics Security so as to keep Biometrics
Security as current as is practicable regarding the Technology. Datotech shall
also disclose any and all improvements to the Technology for Licensed Items to
prospective Third-Party Licensees as well as participate in meetings and
presentations with prospective Third-Party Licensees to demonstrate the
feasibility of integrating the Technology into the Licensed Items. Datotech
shall cooperate with Biometrics Security and Prospective Third-Party Licensees
by providing, at no cost, all required disclosures and assistance in order to
demonstrate the feasibility of integrating the Technology into the Licensed
Items, including but not limited to, hardware and software for demonstrations
and simulations. Such disclosures shall be in a form and manner to be agreed
upon by the parties on a case-by-case basis. Datotech and Biometrics Security
shall each bear their own expenses resulting from such meetings, presentations
or any disclosures
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required pursuant to this Section 2.2.
2.3 MAINTENANCE OF EXISTING PROPRIETARY PROPERTY. During the term of this
Agreement Datotech shall utilize its best efforts to maintain all Existing
Proprietary Property in valid force and effect.
ARTICLE 3
BIOMETRICS SECURITY OBLIGATIONS
3.1 NO OBLIGATION TO EXERCISE OPTION. Biometrics Security has a genuine
interest in commercializing the Technology but shall not be obligated to
exercise the Option granted hereunder and may refuse to execute the License
Agreement.
3.2 CONFIDENTIALITY. Biometrics Security shall have an affirmative duty of
confidentiality regarding all confidential information provided to it by
Datotech hereunder. Such obligation shall survive the termination of this
Agreement and the License Agreement for a period of two (2) years. Moreover,
Biometrics Security acknowledges and agrees that, because of the nature of the
property rights involved under this Agreement and the License Agreement, any
breach of Biometrics Security's obligations under this Section 3.2 shall cause
immediate, irreparable injury to Datotech; therefore, Biometrics Security agrees
and acknowledges that Datotech shall be entitled, in addition to its other
rights and remedies at law and in equity, to seek temporary, preliminary and/or
permanent injunctions in the event an unauthorized disclosure is made or appears
to be imminent.
ARTICLE 4
GRANT OF OPTION
4.1 BIOMETRICS SECURITY OPTION. Datotech hereby grants Biometrics Security
the sole, transferable and exclusive Option, for the Option Period to acquire
the exclusive rights to exploit the Technology, the Existing Proprietary
Property, and any proprietary property related to the Technology conceived
pursuant to this Agreement within the Territory for Licensed items through an
exclusive license agreement in the form attached hereto as Exhibit A.
ARTICLE 5
CONSIDERATION FOR OPTION
5.1 CONSIDERATION. In consideration of the option granted to Biometrics
Security hereunder, Biometrics Security shall pay Datotech the amount of
$320,000 US Dollars, which shall be fully creditable towards any amounts due
Datotech under the License Agreement. Said $320,000 US Dollars shall be due
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and payable within two months of the signing of this Option Agreement.
Biometrics Security shall pay Datotech $3,000,000 US Dollars within eleven
months of signature of the Option Agreement. Datotech will exclusively apply the
$3,000,000 payment towards the development of the Prototype. "Prototype" shall
mean a device using Datotech Technology that will demonstrate, beyond any
reasonable doubt, multi-touch gesture recognition and individual gesture
patterns utilizing a PC system. Datotech commits to use its best efforts to make
this prototype available at this charge of $3,000,000 US Dollars to Biometrics
Security, within 12 months of the delivery of this $3,000,000 US Dollars to
Datotech. Upon the exercise by Biometrics Security of the Option granted
hereunder and the signing of the License Agreement, Biometrics Security shall
pay Datotech the amount of $8 Million US Dollars less the above amount of
$3,320,000 US Dollars paid to Datotech within the terms of this Agreement.
Biometrics Security must exercise its Option within three months of the time a
reasonably acceptable prototype is made available to Biometrics Security by
Datotech. In addition, Biometrics Security or its assignee grants to Datotech a
perpetual non-dilutive twenty percent (20%) Common Share Interest in Biometrics
Security or the assignee of the Option and License Agreements upon the signing
of the Licensing Agreement.
ARTICLE 6
TERM AND TERMINATION
6.1 TERM. The term of this Agreement shall be for the duration of the
Option Period unless otherwise terminated as provided herein.
6.2 TERMINATION. Any exercise of the right of termination hereunder shall
not impose any liability upon the terminating party nor waive any other rights
that the terminating party has or may have. This Agreement may be terminated, in
whole or in part, at the option of the party having such right as below
provided, by written notice upon the occurrence of any of the following events:
(a) by either party in the event the other party is adjudicated
bankrupt, or if a receiver or trustee is appointed for such party or for a
substantial portion of its assets, or if any assignment is made for the benefit
of creditors;
(b) by Datotech in the event Biometrics Security elects not to pay
$320,000 US Dollars to Datotech within two months of the signature of the Option
Agreement.
(c) by Datotech in the event Biometrics Security elects not to pay
$3,000,000 US Dollars to Datotech within eleven months of the signature of the
Option Agreement.
(d) by Datotech in the event Biometrics Security elects not to
exercise the Option granted
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hereunder and not to proceed with negotiations for the execution of the License
Agreement.
(d) Biometrics Security elects not to pay the balance of the $8
million US Dollars under the terms of this Agreement within three months from
the date when a reasonably acceptable prototype is made available to Biometrics
Security by Datotech.
ARTICLE 7
MISCELLANEOUS
7.1 NO THIRD PARTY BENEFICIARIES. There shall be no third party
beneficiaries to this Agreement.
7.2 ASSIGNABILITY. This Agreement shall be assignable by either party in
whole or in part upon the written and signed consent of the other party which
shall not be unreasonably withheld.
7.3 BINDING EFFECT. Subject to the restrictions on assignability contained
herein, this Agreement shall be binding upon and inure to the benefit of the
parties and their respective authorized successors and assigns.
7.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of British Columbia, Canada.
7.5 NOTICES. All notices, requests or consents provided for or permitted
under this Agreement must be in writing and must be given either by mail
addressed to the recipient, postage paid, registered or certified mail return
receipt requested, or by delivering the writing to the recipient in person, by
courier or by facsimile transmission. Such a writing so delivered shall be
effective upon receipt.
7.6 HEADINGS. Headings are used in this Agreement for the purpose of
organization only and do not constitute terms of the Agreement. The words
"herein," "hereof," "hereunder," and other words of similar import refer to this
Agreement as a whole and not to any particular subdivision unless otherwise
expressly indicated.
7.7 SEVERABILITY. If any provision of this Agreement or its application to
any person or circumstance shall be invalid, illegal, or unenforceable to any
extent, the remainder of this Agreement and its application shall not be
affected and shall be enforceable to the fullest extent permitted by law unless
the provision held to be illegal, invalid or unenforceable is so fundamental to
the sense of this Agreement that its illegality, invalidity or unenforceability
would make the enforceability of the remainder unreasonable.
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7.8 ENTIRE AGREEMENT. This Agreement sets forth the entire, final and
exclusive agreement and understanding between the parties as to the subject
matter hereof and supersedes all prior and contemporaneous writings and
discussions between the parties pertaining hereto.
7.9 NO ORAL MODIFICATIONS. This Agreement may be amended or modified only
by a written instrument signed by proper and duly authorized representatives of
both parties.
7.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
In witness whereof the parties hereto have entered into this Agreement on
the date first above written.
DSI DATOTECH SYSTEMS INC.
BY: /s/ Xxxxxx X. Pardiak /s/ Xxxx Xxxxx
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Name: Xxxxxx X. Pardiak Xxxx Xxxxx
Title: Chairman & CFO President & CEO
BIOMETRICS SECURITY, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President & CEO
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EXHIBIT A TO OPTION AGREEMENT
EXCLUSIVE LICENSE AGREEMENT
AGREEMENT made this ____ day of ____, 2001, by and between DSI Datotech
Systems, Inc., a Vancouver corporation, having its principal offices at 000
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx XX, Xxxxxx X0X 0X0 (hereinafter referred to
as the "Licensor" or "Datotech"), and Biometrics Security, Inc., a State of
Nevada, USA corporation, having its principal offices at 000 Xxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxx Xxxx, Xxxxxx XXX 00000 (hereinafter referred to as the
"Licensee" or "Biometrics Security")
WITNESSETH:
WHEREAS, Datotech is the owner of the Technology and Existing Proprietary
Property as hereinafter defined;
WHEREAS, pursuant to the Option Agreement dated as of the 22nd day of
August, 2000, by and between Datotech and Biometrics Security (the "Option
Agreement"), Biometrics Security was granted the option to enter into an
exclusive license agreement to acquire the exclusive rights to exploit the
Technology and the Existing Proprietary Property for Licensed Items within the
Territory as hereinafter defined; and
WHEREAS, as of the date hereof, Biometrics Security has exercised the
option granted to Biometrics Security pursuant to the Option Agreement and has
paid the Option Price (as defined in the Option Agreement) to Datotech;
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration from each to the other, the receipt
and sufficiency of which is hereby acknowledged by both parties, it is hereby
agreed as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. The following terms used in this License Agreement (the
"Agreement") shall have the meanings set forth below:
(a) "Existing Proprietary Property" shall mean all intellectual
property rights in the Technology, including without limitation, (i) any and all
patent applications file worldwide based upon the
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Technology, including any and all continuations, divisions and
continuations-in-part thereof, and all patents, inventor's certificates, utility
models and the like issuing therefrom worldwide, including any and all
re-examinations, reissues, renewals and extensions thereof, (ii) any
copyrightable or copyrighted works based upon the Technology, including computer
software and computer programs, (iii) any confidential or proprietary know-how
and information regarding the Technology, (iv) any trademarks and tradenames
associated with the Technology, whether or not registered, and (v) all fixed
representations, hard copies, hardware, computer-readable media and other
tangible implementation of the Technology (collectively, the "Proprietary
Property"), patent rights, copyrights, trademarks and trade secret rights.
"Existing Proprietary Property" shall also include patent rights in the
Technology that are pending as of the date hereof.
(b) "License Agreement" shall mean this License Agreement by and
between Datotech, as Licensor, and Biometrics Security, as Licensee.
(c) "Licensed Items" shall mean the interface and software for banking
and financial transactions, in which the technology might be utilized pursuant
to the execution by the parties herein of this License Agreement.
(d) "Option Agreement" has the meaning set forth in the second recital
hereof.
(e) "Purchase Price" shall mean $8 Million US Dollars payable by
Biometrics Security to Datotech upon the signing of this Agreement, less the
above amount of $3,320,000 US Dollars paid to Datotech within the terms of the
Option Agreement. In addition, Biometrics Security or its assignee grants to
Datotech a perpetual non-dilutive twenty percent (20%) Common Share Interest in
Biometrics Security or the assignee of the Option and License Agreements upon
the signing of the Licensing Agreement.
(f) "Technology" shall mean Datotech's proprietary gesture recognition
technology ("GRT") system comprising multiple-touch sensors and related
hardware, gesture recognition algorithms and software, and user interface
designs for mapping gestures to control electronic devices, as well as
alterations, improvements, modifications and derivatives to the Technology
described herein as well as all related software, documentation and other
materials, embodying GRT heretofore or created or developed by Datotech.
(g) "Territory" shall mean all major markets worldwide.
(h) "Third-Party Licenses" shall mean sub-licenses granted by
Biometrics Security to third parties pursuant to the licenses and rights granted
to Biometrics Security by Datotech in accordance with this Agreement.
"Third-Party Licensees" shall mean those parties to whom Third-Party Licensees
are granted pursuant hereto.
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ARTICLE 2
LICENSE GRANT
2.1 LICENSE TO EXERCISE RIGHTS. In consideration of the payment to Datotech
of the Purchase Price, Datotech hereby grants to Biometrics Security the
perpetual, royalty-free, sole and exclusive divisible and assignable license to
commercially exploit the Technology and the rights constituting the Existing
Proprietary Property for the Licensed Items subject to all of the terms,
conditions and restrictions contained in this Agreement. The rights granted
hereunder include, without limitation, the marketing, use, sale and distribution
of the Technology and the rights constituting the Existing Proprietary Property
for Licensed Items.
2.2 AUTHORITY TO SUBLICENSE. Subject to all of the terms, conditions and
restrictions contained herein, Datotech hereby grants Biometrics Security the
authority to sublicense the exercise of the rights specified in Section 2.1
above. Datotech will play an active role in all negotiations for sublicensing
agreements.
2.3 RESERVATIONS. Datotech retains all rights except those granted above in
Sections 2.1 and 2.2. Without limiting the generality of the foregoing sentence.
Datotech retains title to the Technology and the Existing Proprietary Property.
ARTICLE 3
IMPROVEMENTS
3.1 DATOTECH IMPROVEMENTS. Biometrics Security acknowledges and agrees that
Datotech shall retain exclusive ownership of any and all improvements to the
Technology during the term of this Agreement as well as after this Agreement is
terminated regardless of the cause or method of termination.
3.2 BIOMETRICS SECURITY IMPROVEMENTS. Datotech acknowledges and agrees that
Biometrics Security shall retain ownership of any and all improvements made by
Biometrics Security. Datotech also acknowledges and agrees that Biometrics
Security shall retain exclusive ownership of such improvements after the
termination of this Agreement regardless of the cause or method of termination.
ARTICLE 4
BIOMETRICS SECURITY RIGHTS AND OBLIGATIONS
4.1 CONFIDENTIALITY OF DISCLOSURES TO THIRD PARTIES. Biometrics Security
may disclose any portion of the Technology, the Existing Proprietary Property,
and the improvements to a third party only pursuant to a
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written agreement between Biometrics Security and any third-party, approved by
Datotech, obligating such third party to secrecy regarding the disclosure.
Biometrics Security acknowledges and agrees that, because of the nature of the
property rights involved in this Agreement, any breach of Biometrics Security's
obligations under this Section 4.1 shall cause immediate, irreparable injury to
Datotech; therefore, Biometrics Security agrees and acknowledges that Datotech
shall be entitled, in addition to its other rights and remedies at law and in
equity, to seek temporary, preliminary and/or permanent injunctions in the event
an unauthorized disclosure is made or appears to be imminent. Biometrics
Security's duty of confidentiality shall survive the termination of this
Agreement regardless of the cause or method of termination.
4.2 DISCLOSURE OF IMPROVEMENTS. From time to time, throughout the duration
of this Agreement, Datotech shall be affirmatively obligated to disclosure the
nature of any and all improvements to the Technology for Licensed Items to
Biometrics Security so as to keep Biometrics Security as current as is
practicable regarding the Technology. Datotech shall also disclose any and all
improvements to the Technology for Licensed Items to prospective Third-Party
Licensees as well as participate in meetings and presentations with prospective
Third-Party Licensees to assist in the integration of the Technology into the
Licensed Items. Datotech shall cooperate with Biometrics Security and
prospective Third-Party Licensees by providing, at no cost, all required
disclosures and assistance in order to integrate the Technology into the
Licensed Items, including but not limited to, hardware and software for
demonstrations and simulations. The form of such disclosures shall be decided by
mutual agreement between the parties on a case-by-case basis. Datotech and
Biometrics Security shall each bear their own expenses resulting from such
meetings, presentations or any disclosures required pursuant to this Section
4.2. The costs of any subsequent development by Datotech at Biometrics Security
request of any hardware and software for a specific application shall be borne
by Biometrics Security.
4.3 REPORTING. Biometrics Security shall provide to Datotech written
reports on an annual basis, no later than March 1st of the subsequent year. Such
reports shall detail Biometrics Security's exploitation, licensing and
sublicensing activities and shall include a report of all related revenues
received and expenses incurred for the same quarter. Such reports shall also (a)
detail Biometrics Security's intellectual property protection activities and
expenses under Section 6.1 hereof for the immediately preceding quarter; (b)
include a status report on the condition of all worldwide intellectual property
rights related to the Technology; and (c) include a report of all strategy and
planning for intellectual property protection activities for the upcoming
quarter.
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ARTICLE 5
DATOTECH RIGHTS AND OBLIGATIONS
5.1 RIGHTS TO LICENSED ITEMS TECHNOLOGY Datotech represents, warrants and
covenants that Datotech is the owner of the Existing Proprietary Property and
has the exclusive right and license for the use of the Technology together with
the right to sub-license to others, manufacture, distribute and sell the
Technology in connection with the Licensed Items. Datotech shall provide all
disclosures and assistance to Biometrics Security and Third-Party Licensees, at
no cost, in order to integrate the Technology into the Licensed Items.
ARTICLE 6
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
6.1 AUTHORIZATION TO BIOMETRICS SECURITY TO FILE FOR INTELLECTUAL PROPERTY
PROTECTION IN THE TERRITORY. Subject to the provisions of Section 2.3, Article
4, Section 6.4, Section 7.1 hereof and all of the other terms and conditions
contained herein, Biometrics Security shall have the authority but not the
obligation, with the consent of Datotech, to take actions in the Territory on
behalf of Datotech such as filing patent applications and seeking registrations
of copyrights for the purpose of securing and protecting intellectual property
rights for Datotech in the Technology and the improvements thereto. The
authority granted in this Section 6.1 may not be assigned, delegated or
sublicensed. Biometrics Security shall bear the expense of all of its activities
under this Section 6.1 including the payment of attorney fees, patent issuance
and maintenance fees, copyright and trademark registration fees and other
similar fees and expenses where applicable.
6.2 ACTIONS NOT TAKEN BY BIOMETRICS SECURITY. In the event Datotech, in its
sole discretion, deems it necessary or beneficial to take a specific action that
Biometrics Security has not taken somewhere in the Territory to protect or
maintain any or all of the intellectual property rights discussed in Section 6.1
hereof, it may notify Biometrics Security of its intention in writing. Upon
receipt of such notice, Biometrics Security shall respond to Datotech within
fifteen (15) calendar days indicating whether Biometrics Security chooses to
take the action requested. If Biometrics Security fails to respond within such
time period, or if Biometrics Security responds indicating that it chooses not
to undertake the requested action, then in that event Datotech may take the
action independently, bearing the cost of the action. In such case, the
intellectual property right or rights resulting from or saved by Datotech's
action, if any, shall automatically cease to be within the scope of the license
rights granted to Biometrics Security in Sections 2.1 and 2.2 hereof.
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6.3 ASSISTANCE AND COOPERATION IN PROTECTING INTELLECTUAL PROPERTY. Both
parties, including their employees and affiliates, shall be obligated to assist
and cooperate with each other in securing the legal protection of any and all
intellectual property rights under Sections 6.1 and 6.2 above.
6.4 ACTS OR OMISSIONS HARMFUL TO INTELLECTUAL PROPERTY. Biometrics Security
shall take no action, nor shall it omit to take any action, if the effect of
such act or omission would be to harm any or all of Datotech's then-existing
intellectual property rights.
ARTICLE 7
DISCLAIMERS
7.1 NO REPRESENTATIONS REGARDING TECHNOLOGY OR INTELLECTUAL PROPERTY.
Datotech makes no representations about and disclaims all warranties, express or
implied, about the Technology, the Existing Proprietary Property, and any
improvements thereto. Without limiting the generality of the foregoing, Datotech
disclaims any express or implied warranties regarding the following:
(a) the fitness, usefulness, efficiency or profitability of the
Technology, the Existing Proprietary Property, the improvements thereto or any
of the rights granted herein;
(b) the validity or scope of any intellectual property rights; and
(c) that anything made, used or sold based on or deriving from the
Technology or any of the rights licensed herein will be free from infringement
of third party rights.
ARTICLE 8
TERM; TERMINATION FOR CAUSE AND SURVIVAL OF CERTAIN PROVISIONS
8.1 TERM. The term of this Agreement shall commence on the date hereof and
shall continue indefinitely unless terminated pursuant to the provisions of this
Agreement.
8.2 TERMINATION FOR CAUSE. Upon a breach by Biometrics Security of any of
its obligations hereunder, Datotech may terminate this Agreement upon sixty (60)
calendar days advance written notice to Biometrics Security describing the
grounds for termination; however, such termination shall not occur if Biometrics
Security conclusively demonstrates to Datotech's satisfaction before the end of
such sixty (60) calendar days that the breach has been cured.
8.3 SURVIVAL. The rights and obligations contained in the following
Sections shall survive
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termination of this Agreement regardless of the method or timing of its
termination: 2.3, 3.1, 3.2, 4.1, 6.3, and 7.1.
8.4 RETURN OF EXISTING PROPRIETARY PROPERTY. If this Agreement shall be
terminated, Biometrics Security shall return to Datotech all technical data,
know-how, confidential information and trade secrets so far as any of them
consists of written materials, prints and other tangible items which either bear
a stamp "confidential" or "confidential information" thereon or are designated
in any other way to Datotech, whether orally or in writing, as confidential
information. For purposes of this Agreement, all Technology as utilized in the
Licensed Items shall be classified as confidential information.
ARTICLE 9
MISCELLANEOUS
9.1 ASSIGNABILITY. This Agreement shall not be assignable by either party
in whole or in part except upon the written and signed consent of the other
party, which shall not be unreasonably withheld.
9.2 BINDING EFFECT. Subject to the restrictions on assignability contained
herein, this Agreement is binding on and inure to the benefit of the parties and
their respective authorized successors and assigns.
9.3 FURTHER ASSURANCES. Biometrics Security agrees to execute and deliver
any additional documents and instruments and perform any additional acts that
may be necessary or appropriate to comply with its obligations hereunder.
9.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia and of Canada as to
all matters of interpretation, performance, remedies and enforceability. The
parties hereto hereby irrevocably submit to the jurisdiction of the Supreme
Court of British Columbia, Canada, over any action or proceeding arising out of
or relating to this Agreement and hereby irrevocably agree that all claims in
respect to any action or proceeding may be heard and determined in such Supreme
Court. The parties hereto irrevocably consent to the service of any and all
process in any such action or processing by the certified mailing with return
receipt of copies of such process to their address specified in this Agreement.
The parties hereto agree that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in any other jurisdiction by suit on the
judgment or any other manner provided by law. The parties hereto waive any
objection to venue in such state and any objection to an action or proceeding in
such state on the basis of forum non convenience.
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9.5 NOTICE. All notices, requests or consents provided for or permitted
under this Agreement must be in writing and must be given either by sending the
writing in the mail addressed to the recipient, postage paid, registered or
certified mail, return receipt requested, which shall be effective upon receipt,
or by delivering the writing to the recipient in person, by courier or by
facsimile transmission to the address specified below:
If to the Licensor:
DSI Datotech Systems, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX
Xxxxxx X0X 0X0
Attention: Elli Segeve
President & CEO
If to the Licensee:
Biometrics Security, Inc.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxx, Xxxxxx
XXX 00000
Attention: Xxxxxxx X. Xxxxx
President & CEO
With a copy to Legal Firm:
Law Offices
0000 Xxxxxx xxx Xxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx
XXX 92108 1789
Attention: Xxxxxxx Xxx
9.6 HEADINGS AND CERTAIN WORDS. Headings are used in this Agreement for the
purpose of organization only and do not constitute terms of the Agreement. The
words "herein," "hereof," "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular subdivision unless otherwise
expressly indicated.
9.7 SEVERABILITY. If any provision of this Agreement or its application to
any person or circumstance shall be invalid, illegal, or unenforceable to any
extent, the remainder of this Agreement and its application shall
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not be affected and shall be enforceable to the fullest extent permitted by law
unless the provision held to be illegal, invalid or unenforceable is so
fundamental to the sense of this Agreement that its illegality, invalidity or
unenforceability would make the enforceability of the remainder unreasonable.
9.8 ENTIRE AGREEMENT. This Agreement sets forth the entire, final and
exclusive agreement and understanding between the parties as to the subject
matter hereof and supersedes all prior and contemporaneous writings and
discussions between the parties pertaining hereto.
9.9 NO ORAL MODIFICATION. This Agreement may be amended or modified only by
a written instrument signed by proper and duly authorized representatives of
both parties.
9.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
In witness whereof, the parties have caused this Agreement to be duly
executed on the date first set forth above.
BIOMETRICS SECURITY, INC.
By:____________________________________
Name:
Title:
DSI DATOTECH SYSTEMS INC.
By:____________________________________
Name:
Title:
