EXHIBIT 10.12
AMENDED AND RESTATED
SERVICES AGREEMENT
This Amended and Restated Services Agreement (the "Agreement") is made and
entered into as of the 19th day of May, 2005, by and between TERRA INSIGHT
CORPORATION, a Delaware corporation ("TIC"), and THE INSTITUTE OF
GEOINFORMATIONAL ANALYSIS OF THE EARTH, a Liechtenstein establishment (the
"INSTITUTE"). This Agreement amends and restates the Service Agreement dated as
of January 7, 2005 between the parties.
WHEREAS, the INSTITUTE is in the business of developing, using, and
licensing others to use, and is the developer and owner of certain technology
and know-how used in the surveying, mapping, detection, and reporting of natural
resources of the Earth (the "Mapping Technology");
WHEREAS, TIC is in the business of providing services and products in
connection with the identification, location, exploration and recovery of
deposits of natural resources ("TIC Services"); and
WHEREAS, the INSTITUTE licensed all of its commercial Mapping
Technology to TIC;
WHEREAS, the INSTITUTE agreed to provide related commercial services in
the use of the Mapping Technology;
NOW THEREFORE, for good and valuable consideration and on the promises and
premises set forth below, the parties agree as follows:
1. GENERAL DESCRIPTION OF OBJECTIVES AND SCOPE OF SERVICE. TIC hereby
engages INSTITUTE as an independent contractor, and not as an employee or agent
of TIC, to provide to TIC the services, as hereinafter set forth in greater
detail and within guidelines established by TIC and INSTITUTE. INSTITUTE is not
granted any right or authority to assume or create any obligation or liability,
express or implied, on behalf of TIC or in its name, or to accept service of
process in any action on its behalf or in its name, or to bind TIC in any manner
or form whatsoever.
TIC hereby retains INSTITUTE to perform such consulting and advisory
services (the "Services") requested by TIC for the Term of this Agreement. The
Services shall include suggestions of locations, detection, assessments,
prognoses, determinations, analysis, surveys, diagrams, modeling, mapping and
recommendations related to the utilization of the Mapping Technology,
preparation of reports of results of the Services, and interpretation of results
of uses of the Mapping Technology and of workings of the Mapping Technology.
INSTITUTE agrees to perform for TIC the Services, including preparation of any
documentation related thereto. INSTITUTE further agrees to perform the Services
in a good workmanlike and timely manner. All Services requested by TIC shall be
performed by personnel of INSTITUTE that are reasonably acceptable to TIC.
INSTITUTE shall devote such time and efforts as are reasonably consistent with
the needs of TIC, and will devote such time as TIC reasonably requests and
requires. Notwithstanding anything to the contrary herein, TIC shall own all of
the work product of the Services.
2. TERM OF AGREEMENT. The term of the Agreement shall be for a period of
thirty (30) years (the "Term") commencing with the date of this Agreement,
unless earlier termination pursuant to the termination of the Technology License
Agreement entered into by the parties as of even date. The Term shall
automatically renew for another thirty year period unless terminated by either
party in writing within ninety (90) days before the end of the initial thirty
year term unless sooner terminated in accordance with the termination of the
Technology License Agreement.
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3. PAYMENTS. (a) TIC shall pay INSTITUTE fees for the Services at a
substantial discount to INSTITUTE's published rates. Prior to commencement of
the requested Services, INSTITUTE shall provide an estimate of the anticipated
total fees. For all Services, INSTITUTE shall charge TIC at the rate of no more
than 40% of its published rates or such other lesser rate, as may be agreed upon
by the parties. Within ten days after the end of each calendar month, for each
requested Service, INSTITUTE shall furnish to TIC a statement, in form
acceptable to TIC, certified by an authorized officer of INSTUTE, setting forth
the amount of fees payable to INSTITUTE. TIC shall pay such fees on a quarterly
basis or as otherwise agreed by the parties. The minimum fees per year for the
Services shall be $500,000. Until such time as TIC has revenues of at least
$10,000,000 in a calendar year, or such time as the market capitalization for
TIC exceeds $100,000,000, 83.334% of the license fees paid by TIC to the
INSTITUTE pursuant to the Technology License Agreement shall be credited against
the cost for Services. Notwithstanding the above, in any calendar year in which
TIC has revenues of less than $6,000,000, the minimum services fees per year of
$500,000 shall be credited against the annual license fee of $600,000.
Commencing in years after calendar year 2006, the minimum services fees per year
shall increase annually by the lesser of (i) four percent (4%) or (ii) the
percentage increase of the New York Consumer Price Index using 2005 as the base
year.
(b) To the extent reasonably feasible, TIC agrees to use its best
efforts to assist INSTITUTE in obtaining credit, or access to credit facilities,
bank loans or similar funding, or to provide such direct loans or other
appropriate funding as may be reasonably required, on normal commercial terms,
to facilitate acquisitions or expansion of Institute service capabilities and
technology enhancements, provided that TIC, in its discretion, determines that
such proposed transaction(s) will benefit TIC or enhance the provision of
services to TIC by INSTITUTE.
4. CONFIDENTIAL INFORMATION. For purposes of this Agreement, "Confidential
Information" shall mean any information obtained by INSTITUTE from, or disclosed
to INSTITUTE by TIC which relates to the past, present or future research,
development and business activities of TIC (or TIC's affiliated companies), and
to any of the intellectual property related thereto, to any intellectual
property developed by INSTITUTE, heretofore or hereafter, or that is previously
known to INSTITUTE or is publicly disclosed by TIC either prior or subsequent to
INSTITUTE's receipt of such Confidential Information. INSTITUTE shall hold all
such receipt of such information in trust and confidence for TIC for an infinite
period, and, except as may be authorized by TIC in writing, INSTITUTE shall not
disclose to any person, firm or enterprise, or use for his benefit, any such
confidential information. Upon termination or expiration of this Agreement,
INSTITUTE shall deliver to TIC all items in its possession, which may contain
any such confidential information.
5. COVENANT NOT TO COMPETE. During the term of this Agreement, INSTITUTE
will not, within any jurisdiction in which INSTITUTE or any affiliate conducts
its business operations, act in any way materially competing with TIC, directly
or indirectly, own, manage, operate, control, be employed by or participate in
the ownership, management, operation or control of, or be connected in any
manner with, any business of the type or character engaged in or competitive
with that conducted by TIC.
6. TERMINATION. In the event of termination of this Agreement, absent
INSTITUTE's material breach, TIC will provide four (4) weeks' notice of
termination. In the event TIC fails to provide a four (4) week notice of
termination, TIC will be obligated to pay a termination fee equal to 8.33% of
the prior calendar year's payments to the INSTITUTE by TIC. Termination of this
Agreement shall not relieve any obligations pursuant to the License Agreement.
The License Agreement shall survive the termination of this Agreement.
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7. ASSIGNABILITY. Neither party shall not assign any right or interest in
this Agreement without the prior written approval of the other party.
8. WAIVER. A waiver of any breach or default under this Agreement shall
not constitute a waiver of any other right for subsequent breach or default.
Failure to enforce any term of this Agreement shall not constitute a waiver of
any rights to enforce subsequent breaches.
9. SEVERABILITY. If any provision of this Agreement is declared void, or
otherwise unenforceable, that provision shall be deemed to have been severed
from this Agreement, which shall otherwise remain in full force and effect.
10. NOTICES. Any notice or other communication required or permitted
hereunder shall be sufficiently given if sent by certified mail, overnight
courier, or facsimile (followed by prompt transmission of the original of such
notice by any of the foregoing means), in each case proper postage or other
charges pre-paid and addressed as set forth below:
If to TIC:
Attn.: Xxxxx Xxxxxxxxx
Terra Insight Corporation.
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
With a copy (which shall not constitute notice) to:
Xxx Xxxxxxx, Esq.
Law Offices of Xxx Xxxxxxx
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
If to INSTITUTE:
THE INSTITUTE OF GEOINFORMATIONAL ANALYSIS OF THE EARTH
x/x Xxxx Xxxxxxx
0-00 X. Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxx
Fax: x0 000 0000000
Such notice shall be deemed given when actually received. Any party may change
the address for notices by service of notice to the other as herein provided.
11. ENTIRE AGREEMENT. This Agreement, together with the License Agreement,
including the exhibits annexed thereto, represent the entire agreement between
the parties and supersede any previous contemporaneous oral or written
agreements, commitments, representations or communications regarding the subject
matter of this Agreement. Any modification to this Agreement must be in writing
and signed by a duly authorized agent of both parties.
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12. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13. GOVERNING LAW. This Agreement shall be governed for all purposes by
the laws of the State of New York without regard to conflict of laws principles.
The parties expressly agree to jurisdiction of the state and federal courts
located in the City, County and State of New York. The parties irrevocably waive
any objection they now or hereafter may have respecting the venue of any such
action or proceeding brought in such a court or respecting the fact that such
court is an inconvenient forum, relating to or arising out of this Agreement,
and consent to the service of process in any such action or legal proceeding by
means of certified mail, return receipt requested, or overnight courier, in care
of the address set forth herein or such other address as provided for in
accordance with this Agreement.
[signature page follows]
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AGREED TO AND ENTERED INTO BY AND BETWEEN THE PARTIES AS OF THE EFFECTIVE DATE
SET FORTH ABOVE.
TERRA INSIGHT CORPORATION THE INSTITUTE OF GEOINFORMATIONAL
ANALYSIS OF THE EARTH
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxx Railyan
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Roman Xxxxxxxxx Xxxx Railyan
Chief Executive Officer Authorized Signatory
Date: May 19, 2005 Date: May 19, 2005
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