REPLACEMENT PATENT LICENSE AGREEMENT
Exhibit
10.19
This
Replacement License Agreement ("Agreement") is entered into as of the 31st day of
December, 2008 (the "Effective Date"), by GPS Industries, Inc., a Nevada
corporation having its principal place of business in Sarasota, Florida
("GPSI"), Optimal Golf Solutions, Inc. (“OGSI”), a wholly-owned subsidiary of
GPSI and Optimal I.P. Holdings, L.P., a Texas limited partnership having its
principal place of business at 0000 Xxxxx Xxxxxxxx Xxxx, Xxxxxx,
Xxxxx 00000 ("Optimal").
RECITALS
WHEREAS,
OGSI is the sole and exclusive owner of Licensed Patents relating to a method
and apparatus for determining the distance between various locations on golf
courses using GPS technology, and is a wholly-owned subsidiary of
GPSI;
WHEREAS,
on November 19, 2004, GPSI and Optimal Royalty, L.P. entered into a Patent
License Agreement wherein GPSI granted Optimal Royalty, L.P. a perpetual,
non-terminable, royalty-free, exclusive (except as to GPSI) license under
Licensed Patents in the Consumer Handheld Field within the United States of
America.
WHEREAS,
Optimal Royalty, L.P.’s name has been changed to Optimal I.P. Holdings, L.P., of
which Cornish and Xxxxxx are limited partners;
WHEREAS, on December 7, 2006 GPSI and
Optimal entered into a First Amendment to the Patent License Agreement whereby
GPSI agreed to certain restrictions regarding its sales of hand held devices
under the Patent License Agreement and the parties permitted Optimal to
commercialize a limited number of its handheld devices for temporary use on golf
courses for support of golf tournaments which may utilize local area
differential correction;
WHEREAS, Optimal and GPSI have been
engaged in an on-going dispute in which Optimal claims that its prior license
rights extend to software applications intended for use with a GPS enabled
handheld hardware device, and GPSI denies that Optimal’s prior license extends
to such software applications;
WHEREAS, Optimal and GPSI wish to
compromise this and other disputes between them by amending and clarifying the
scope of Optimal’s and GPSI’s rights in the Licensed Patent, with neither Party
making any admission on the merits of the
underlying disputes;
NOW THEREFORE, the parties agree to
replace Patent License Agreement dated November 19, 2004 and the First Amendment
to the Patent License Agreement dated December 7, 2006 with the following
Replacement Patent License Agreement set forth as follows:
1. Definitions
| 1.1 |
“Authorized Seller”
means Optimal, GPSI, or a sublicensee in the case of a sublicense
authorized by this Agreement, depending on the context.
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| 1.2 |
“Chain of Distribution”
means suppliers, distributors, OEM partners, agents, and related companies
engaged by an Authorized Seller in the manufacture, use, offering for
sale, sale or importation of Handheld Devices (including wireless carriers
and other distributors of software products for handheld hardware
devices), and to all end users or purchasers of any Handheld
Device.
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1.3
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“Handheld Devices” means
hardware and software systems for Distance Measurement on a golf course
using GPS and which (i) are capable of being carried by hand, (ii) do not
utilize a local area differential correction and base station installed on
a golf course, and (iii) are integrated or intended for integration into a
handheld unit. “Handheld Devices” specifically excludes devices
that are provided by a golf course for use by End Users on the course and
which are detachably mounted to a golf cart unless (i) the primary source
of energy is from the devices' own battery and not the cart battery; and
(ii) the device is capable of operating independently of the golf cart for
long periods of time. Handheld Devices comprises two categories
of products: (1) Hardware/Software Products and (2) Software
Only Products.
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| 1.3(a) “GPS Golf Software Applications” means all software applications practicing or covered by the Licensed Patent, and intended for use with a GPS enabled handheld hardware device, such as a PDA, PND or cell phone, and digital course maps adapted for use with said software applications. | |||
| 1.3 (b) “Hardware/Software Products” means Handheld Devices where the hardware and GPS Golf Software Applications are made by or for the Authorized Seller and sold and/or distributed in the Authorized Seller’s chain of distribution and the device is sold and/or distributed with the GPS Golf Software Application preloaded on the device. | |||
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1.3
(c) “Software Only Products”
means GPS
Golf Software
Applications where only the GPS Software Applications are made by or for
the Authorized Seller and sold and/or distributed in the Authorized
Seller’s Chain of Distribution to the End User. “Software Only
Products” specifically excludes such GPS Golf Software
Applications that are preloaded on a handheld device at the time of sale
or distribution of the
device.
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1.4
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“Consumer Handheld
Field” means all Handheld Devices sold through an Authorized
Seller’s Chain of Distribution.
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1.5
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"Continuation" means,
with respect to patents and patent applications, a re-filing of a
specification filed in a prior patent application for which priority is
claimed in whole or in part, with or without the presence of new matter or
of matter or claims divided from the prior patent application, and without
regard to whether or not a patent has matured from the prior patent
application.
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| 1.6 | "Course" means a golf course. |
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1.7
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"Course Management"
means tracking the position of a golfer on a Course with Handheld Devices
or Licensed Methods using GPS.
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1.8
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"Distance Measurement"
means measuring distance from a GPS receiver on a Course to a feature on
the Course using GPS.
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1.9
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"Licensed Patent" means
U.S. Patent No. 5,364,093 issued on November 15, 1994 assigned
to GPSI and entitled "Golf Distance Measuring System and
Method"
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1.10
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"Licensed Methods" means
methods relating to Distance Measurement and/or Course Management on a
Course using GPS enabled Handheld Devices which in the absence of this
Agreement would infringe at least one claim of the Licensed
Patents.
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1.11
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"Licensed Territory"
means the United States and any region in which an activity of Optimal is
covered by the Licensed Patent.
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1.12
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“Tournament Device”
means a hardware and software system for Distance Measurement on a
golf course using GPS that is capable of being carried by hand and that
has a temporary local area differential GPS base station on the golf
course that is intended to be used for a tournament and practice leading
up to said tournament.
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1.13
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“End User” means the end
user of a Handheld Device excluding retailers, resellers, wholesalers,
distributors, and service providers of a Handheld
Device.
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1.14
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“Net Sales” means gross
revenues received by GPSI or Optimal or its sublicense from the sale or
lease of Software Only Products as separate articles of commerce, less any
and all (i) taxes, duties and tariffs imposed on the manufacture, sale,
transfer, importation, transportation or storage thereof; (ii) packing,
transportation and insurance costs for delivery thereof; (iii) credits,
discounts, allowances and returns actually granted thereon; and (iv)
commissions actually paid to any independent dealer, distributor, sales
representative or agent in connection with sales
thereof.
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2.
Grant
| 2.1 |
GPSI
grants to Optimal a perpetual, non-terminable, royalty-free, exclusive
(except as to GPSI ) license under the Licensed Patent in the Consumer
Handheld Field, to develop, make, have made, use, sell, offer for sale,
lease, import, distribute and otherwise dispose of Handheld Devices and to
practice Licensed Methods in and into the Licensed
Territory.
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| 2.2 |
Optimal’s
commercialization activities are limited to Optimal’s Chain of
Distribution, which includes Optimal’s right to sublicense End
Users.
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| 2.3 |
Optimal
shall also have the right to sublicense third parties under the Licensed
Patent within the scope of the license grant of Paragraph 2.1, with the
limited exception of Software Only Products as set forth in Paragraph 3.1
below. Any such sublicense shall be limited to a sublicensee’s
Chain of Distribution.
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| 2.4 |
Additionally,
GPSI grants to Optimal a perpetual, non-terminable, royalty-free,
exclusive (except as to GPSI ) license under the Licensed Patent, to
develop, make, and have made up to 100 Tournament Devices, and
to lease or otherwise provide such devices for use on a temporary basis in
connection with up to 50 tournaments per year, and to sublicense the
right, to practice Licensed Methods solely in connection with such
tournaments in and into the Licensed Territory. Optimal shall
provide GPSI on a quarterly basis a written accounting setting forth the
number of Tournament Devices commercialized under this limited additional
license grant during the proceeding quarter and the running total number
of such devices, as well as the identity, course name and date(s) of each
tournament at which such devices were provided during the proceeding
quarter.
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2.5
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GPSI
shall retain a nonexclusive, royalty-free perpetual right and license
under the Licensed Patent in the Consumer Handheld Field to develop, make,
have made, use, sell, offer for sale, lease, import, distribute and
otherwise dispose of Handheld Devices and to practice Licensed Methods in
and into the Licensed Territory. With respect to
Hardware/Software Products, the foregoing grant is limited to GPSI’s Chain
of Distribution, which includes GPSl’s right to sublicense End
Users. GPSI shall not have the right to sublicense the Licensed
Patent for Hardware/Software Products outside of its Chain of Distribution
in the Consumer Handheld Field. GPSI’s right to sublicense the
Licensed Patent for Software Only Products outside of its Chain of
Distribution is as set forth in Paragraph
3.1.
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2.6
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Notwithstanding
Paragraph 2.5, GPSI agrees that until July 20, 2009 it will not sell a
Hardware/Software Product for use in golf in the United
States.
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2.7
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The
Parties agree that neither party has any rights under the Licensed Patents
in the Consumer Handheld Field except as expressly set forth in this
Agreement.
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3. Software
Only Products
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3.1
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Each
party shall have the right to commercialize (i.e., develop, make, have
made, use, sell, offer for sale, lease, import, distribute and otherwise
dispose of) Software Only Products independently for its own
account. Each party may, alternatively, sublicense its right to
commercialize Software Only Products on an exclusive and royalty free
basis to a single third party (hereinafter “Venture Partner”) outside of
its Chain of Distribution. Each party may participate in the
commercialization of Software Only Products with its sublicensed Venture
Partner, but shall not commercialize its own Software Only Products
independent of the Venture Partner during the period in which such
sublicense is in effect.
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3.2
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Sublicenses
executed prior to the execution of this Replacement Agreement, listed in
Exhibit A attached hereto, are recognized as valid and subsisting and are
exempt from any additional requirements of this Replacement Agreement or
separate license agreement for Software Only Products which are
inconsistent with such sublicenses. The parties further agree
that their jointly retained contingent fee counsel may issue additional
licenses for Software Only Products to third parties in connection with
the settlement of actual or potential claims of patent infringement
against such third parties. Any such sublicense shall be
limited to the sublicensee’s Chain of Distribution and shall include
royalty and payment terms mutually agreed upon by the GPSI and
Optimal. Both GPSI and Optimal shall be included as parties to
any such sublicense agreement, and such agreement shall not be effective
unless executed by each of GPSI, Optimal and the
sublicensee.
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3.3
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Within
180 days from the Effective Date of this Agreement, Optimal shall have the
right to cancel is previously executed royalty bearing license to
Assistant Golf Pro and to sublicense Assistant Golf Pro on an exclusive
and royalty free basis as Optimal’s Venture Partner pursuant to Paragraph
3.1. In the event that Optimal does not exercise its right to
do so within said 180 day period, then GPSI shall automatically have the
right to grant one additional license for Software Only Products to any
additional third party outside of its Chain of Distribution at royalty
rate of 10% of Net Sales.
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3.4
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Neither
Optimal nor GPSI shall have the right to sublicense any additional third
parties under the Licensed Patent for Software Only Products outside of
its Chain of Distribution beyond the limits imposed in the above
Paragraphs 3.1 to 3.3 without the express written permission of the other
party.
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3.5
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Neither
party shall name as a Venture Partner or sublicensee under Paragraphs 3.1
or 3.3, or assign this Agreement or the Licensed Patent under Section 5
to, a third party with which there is an actual dispute involving
infringement of the Licensed
Patent.
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3.6
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Neither
party is obligated to pay royalties to the other party for sales of
Software Only Products under Paragraph 3.1. Optimal is not
obligated to pay to GPSI any portion of royalties generated from its
sublicense to Assistant Golf Pro. GPSI is not obligated to pay
to Optimal any portion of royalties generated from any sublicense granted
by GPSI under Paragraph 3.3. The royalties received from any
additional licenses for Software Only Products under Paragraph 3.2, net of
any amounts due contingent fee counsel, will be shared equally between
GPSI and Optimal.
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4.
Patent Marking.
No patent
marking of the Licensed Patent shall be required of Optimal, subject to the
proviso that, to the extent Optimal marks any Handheld Devices with any patent
numbers other than the Licensed Patent, Optimal shall also include the patent
marking under the Licensed Patents.
5. Assignability
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5.1.
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Except
as set forth in this Article 5, this Agreement and the rights, licenses
and obligations hereunder may not be assigned by Optimal without the
express written consent of GPSI. This Agreement shall be binding upon and
inure to the benefit of the Parties hereto, their permitted assigns,
trustees or receivers in bankruptcy or successors by merger, purchase of
assets or otherwise.
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5.2.
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GPSI
acknowledges that Optimal is the nominee of Xxxxxx Xxxxxxx and Xxxx Xxxxxx
and consents to the substitution of such nominee upon notice as provided
herein. GPSI agrees that Optimal may license or assign this
Agreement to an entity organized to commercialize consumer GPS golf
handhelds, currently designated AssistantPro, Inc. a Texas corporation
organized for that purpose, or a substitute
nominee.
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5.3.
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Optimal
may assign this Agreement and the rights and obligations hereof to an
acquirer of substantially all of the assets of
Optimal.
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5.4.
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GPSI
shall have the right to assign this Agreement, and the rights, licenses
and obligations thereof, except that GPSI may not assign its rights with
respect to Software Only Products if such assignment would be inconsistent
with the limitations imposed under Paragraphs 3.1 to
3.4.
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6. Warranties,
Disclaimers and Indemnification
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6.1
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GPSI Representations and
Warranties. GPSI represents and warrants to Optimal, as
of the Effective Date of this Agreement, that:
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6.1.1
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GPSI
is sole and exclusive owner of the identified Licensed Patent and has the
power to enter into this Agreement and to grant the license granted herein
to Optimal, and no consent of any other person is required
therefore;
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6.1.2
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GPSI
and Optimal are engaged in current claims actions, suits, or proceedings
relating to the Licensed Patent; and
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6.1.3
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GPSI
is not party to an existing agreement with any other party that conflicts
with this Agreement or the license granted herein to
Optimal.
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6.2
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GPSI Warranty
Disclaimer. GPSI DISCLAIMS ANY WARRANTY AS TO VALIDITY
OF THE LICENSED PATENT, NON-INFRINGEMENT OF LICENSED PRODUCTS, AND ANY
WARRANTY AS TO THE ACCURACY, SUFFICIENCY OR SUITABILITY OF THE LICENSED
PRODUCTS AND ASSUMES NO RESPONSIBILITY OR LIABILITY FOR LOSS OR DAMAGES,
WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL WHICH MIGHT ARISE
OUT OF ANOTHER'S USE OF THE LICENSED PRODUCTS, WHICH SHALL BE ENTIRELY AT
OPTIMAL'S OR IT'S SUBLICENSEE'S RISK AND PERIL.
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6.3
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Optimal Representations and
Warranties. Optimal represents and warrants to GPSI, as
of the Effective Date of this Agreement, that:
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6.3.1
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Optimal
has the power to enter into this Agreement and no consent of any other
person is required therefore;
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6.3.2
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Optimal
and GPSI are engaged in current claims actions, suits, or proceedings
relating to the Licensed
Patent.
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7. Limitation
of Liability
IN NO
EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL,
SPECIAL CONSEQUENTIAL OR RELIANCE DAMAGES (INCLUDING ANY LIABILITY TO THE OTHER
PARTY FOR LOST PROFITS OR BUSINESS OPPORTUNITIES) HOWEVER, CAUSED AND ON ANY
THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING OUT OF THIS AGREEMENT,
INCLUDING (BUT NOT LIMITED TO ) LOSS OF ANTICIPATED PROFITS, EVEN IF SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7
8 GPSI
Obligation to Maintain
GPSI
shall be obligated to continue to maintain the Licensed Patent by payment of the
required patent maintenance fees. GPSI shall keep Optimal timely
informed as to the maintenance of the Licensed Patent. If at any time
Optimal determines that GPSI is not performing its obligation to maintain the
Licensed Patent under this Article 8, Optimal has the right to assume
control of (and GPSI agrees to assist Optimal with) such patent
maintenance.
9.
Infringement by Third Parties
9.1 The
terms of the parties Amended Patent Enforcement Cooperation Agreement shall
govern enforcement of the Licensed Patent.
9.2 Each
Party acknowledges and hereby assigns to other Party any causes of action and
royalties that would be due to the other Party under this Agreement for any acts
of infringement committed during the full life of the Licensed Patent,
specifically including damages under the Licensed Patent prior to the date of
this Agreement.
10. Term
and Termination
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10.1
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The
term of this Agreement shall commence on the Effective Date hereof, and
shall continue in effect for so long as any claim in the Licensed Patent
is valid and subsisting, unless terminated earlier as provided in this
section.
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10.2
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This
Agreement may be terminated by mutual, written agreement of the
parties.
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10.3
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This
Agreement may be terminated if a party to this Agreement commits a
material breach of any material provision herein upon written notice to
the defaulting party and such default is not cured within 45 days of
such notice.
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10.4
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All
rights and licenses granted under or pursuant to this Agreement by GPSI to
Optimal are, and shall otherwise be deemed to be, for purposes of Section
365(n) of Title 11, U.S. Code (the "Bankruptcy Code"), licenses and rights
to "intellectual property" as defined under Section 101 of the Bankruptcy
Code. The Parties agree that Optimal, as licensee of such rights under
this Agreement, shall retain and may fully exercise all of its rights and
elections under the Bankruptcy Code. In the event that GPSI
otherwise defaults under this Agreement or otherwise ceases, discontinues
or terminates all business activity, this Agreement and license shall
survive such dissolution, default, cessation, discontinuation or
termination.
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| 11. | Effect of Termination and Expiration | ||
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11.1
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Effect of Termination. Upon early termination of this Agreement under Paragraphs 10.2 and 10.3 of Article 10 hereof, the license granted herein to Optimal may only terminate upon early termination of this Agreement due to a Optimal material breach, except that Optimal (or its assignee) shall have the right thereafter to sell or lease its inventory of Handheld Devices remaining on the date of the termination. | ||
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11.2
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Survival. Articles 9, 10-13 and Paragraph 14.4 shall survive expiration or termination of this Agreement. | ||
| 12 | Disputes | ||
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12.1
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Any
dispute arising out of or relating to this Agreement shall be resolved
exclusively in accordance with the procedures specified in this Article
12.
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| 12.2. | The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this contract. Any Party may give the other Party written notice of any dispute not resolved in the normal course of business. Such notice shall include (a) a statement of that Party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will be representing that Party and of any other person who will accompany the executive in the negotiations. Within fifteen (15) days after delivery of the notice, the receiving Party shall respond with (a) a statement of that Party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that Party and of any other person who will accompany the executive in the negotiations. Within thirty (30) days after delivery of the initial notice, the executives of both Parties shall meet at a mutually acceptable time and place and thereafter as often as they reasonably deem necessary to attempt to resolve the dispute. All reasonable requests for information made by one Party to the other will be honored. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. | ||
| 12.3. | If the dispute has not been resolved by the negotiation process specified in section 12.2, within forty-five (45) days following the initial notice, the Parties shall endeavor to settle the dispute by mediation under the then current CPR Mediation Procedure published by the CPR Institute for Dispute Resolution (NYC). Unless otherwise agreed, the Parties will select a mediator from the CPR Panels of Distinguished Neutrals. | ||
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| 12.4. | Any dispute which has not been resolved by a non-binding procedure as provided herein, within one-hundred twenty (120) days of the initiation of such procedure, shall be resolved by binding arbitration in accordance with the then current CPR Rules for Non-Administered Arbitration by a panel of three arbitrators. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16, and judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of mediation and arbitration shall be Chicago, Illinois. The arbitrators may enter injunctive relief, including specific performance, both pendente lite and permanent, but are not empowered to award damages in excess of compensatory damages; each Party expressly waives and foregoes any right to punitive, exemplary or similar damages. | ||
| 12.5. |
The
foregoing provisions in this Article 12 notwithstanding, either Party may
at any time initiate an arbitration proceeding in accordance with the
provisions of section 12.4 if that Party faces immediate and irreparable
harm requiring the entry of a temporary restraining order, preliminary
injunction or a like remedy to preserve the status quo
ante. The application for this extraordinary relief may be made
unilaterally and the Party seeking that relief may invoke such emergency
provisions as are permitted under the Rule 14 of the CPR Rules, providing
the appointment of an arbitrator by CPR on an expedited
basis. During the pendency of any proceedings or the
application of any emergency relief under this section 14.5, the Parties
shall nevertheless conform to the dispute resolution procedures set forth
in this Article
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13. Notices
Any
notice or report made by either party shall be considered proper and effective
if mailed by registered mail addressed as shown below, or delivered in person
and in writing. Optimal and GPSI agree to notify all other parties of
any changes.
| If to Optimal: | Optimal IP Holdings,
L.P.
Xxxxxx,
Xxxxx 00000
Attention: Xxxxxx
Xxxxxxx
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| With copy to: | Xxxxxx XxXxxxxx,
L.L.P.
000
Xxxxxx
Xxxxx
000
Xxxxxx,
XX 00000
Facsimile
No.: (000) 000-0000
Attention:
Xxxx
Xxxxxx
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10
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If
to GPSI:
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Attention:
Xxxxx Xxxxxxxx.
Facsimile:
604-576-7460
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| With a copy to: | ||
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Loeb
& Loeb, LLP
00000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Attention: Xxxxx
X. Xxxxxxxx, Esq.
Facsimile: (000)
000-0000
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or to
such changed address as shall have been designated by notice.
| 14. | General Provisions | |
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14.1
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This
Agreement supersedes and replaces Patent License Agreement dated November
19, 2004 between GPSI, OGSI, and Optimal Royalty, L.P., and the First
Amendment to the Patent License Agreement dated December 7,
2006. In the event of any inconsistency between this the prior
Patent License Agreement or the First Amendment to the Patent License
Agreement and this Replacement Patent License Agreement, this Agreement
governs and controls.
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14.2
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Waiver
or Modification. The waiver, amendment or modification
of this Agreement or any right or obligation hereunder shall not be
effective unless agreed to by each of the parties in
writing.
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14.3
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Force
Majeure. Neither party will be deemed in default of this
Agreement to the extent that performance of its obligations or attempts to
cure any breach are delayed or prevented by reason of any act of God,
fire, natural disaster, accident, act of government, shortages of material
or supplies or any other cause beyond the control of such party, provided
that such party gives the other party written notice thereof promptly and,
in any event, within thirty (30) days of discovery thereof and uses good
faith efforts to so perform or cure. In the event of such a
Force Majeure, the time for performance or cure will be extended for a
period equal to the duration of the Force Majeure but not in excess of six
(6) months unless agreed to by both parties in
writing.
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14.4
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Governing
Law. This Agreement shall be governed by the laws of the
State of Delaware.
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14.5
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Severability. If
any provisions of the Agreement or the application of any such provision
shall be held to be contrary to law, the remaining provisions of this
Agreement shall continue in full force and
effect.
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14.6
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Entire
Agreement. The
parties acknowledge that this Agreement expresses their entire
understanding and agreement with respect to Licensed Products sold or
installed after the Effective Date of this Agreement, and that there have
been no warranties, representations, covenants or understandings made by
either party to the other except such as are expressly set forth
herein..
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IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in
duplicate by duly authorized officers effective on the date and year first
written above.
12
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Optimal
IP Holdings, LP
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By:
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By:
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Name:
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Name:
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Date:
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Date:
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Optimal
Golf Solutions, Inc.
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By:
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Name:
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Date:
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13
EXHIBIT
A
PRIOR
SUBLICENSES
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1.
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Assistant
Pro
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2.
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GPS
Golf Pro
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3.
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Karrier
Communications
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