EXHIBIT 10.1
AFFLIATE AGREEMENT DATED JULY 15, 2005
AFFILIATE AGREEMENT
This Agreement entered into as of the Effective Date by and between
Link Plus Corporation and Axiometric, LLC.
RECITALS
WHEREAS, Axiometric has developed certain computer software including
wireless mesh networking technology and AMR devices and systems;
WHEREAS, LKPL has developed certain radio devices and systems along
with hardware manufacturing capacities and plans to develop AMR devices and
systems;
WHEREAS, LKPL and Axiometric believe it will be in their mutual best
interests to cooperate in further developing AMR product suites by creating a
preferred provider relationship between themselves;
WHEREAS, LKPL and Axiometric entered into a Letter of Intent dated May
3, 2005, and now desire to further describe their relationship as initially set
forth in the non-binding portions of that 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 Throughout this Agreement, and unless the context otherwise
requires, the terms shown on Exhibit A (whether or not
capitalized) shall have the meanings there specified. If other
terms are defined in the text of this Agreement, then
throughout this Agreement, those terms shall have the meanings
respectively ascribed to them.
2. OFFICE SPACE
2.1 During the term of this Agreement, LKPL will provide
Axiometric with a license to use office space in LKPL's
corporate facility in Columbia, Maryland, free of charge.
2.2 LKPL will allow Axiometric to use enough office space for two
individuals and associated equipment in locations convenient
for LKPL's purposes for as long as that space is available and
not needed by LKPL for its own purposes. Axiometric will have
access to LKPL's telephone system, internet connections,
conference room, and printers.
2.3 If LKPL requires space used by Axiometric for LKPL's own
purposes, then LKPL will attempt in good faith but without
having any obligation to continue to provide Axiometric with
comparable space. If LKPL deems itself unable to continue to
provide Axiometric work space without expanding LKPL's
facilities, and if LKPL determines it will be in its own best
interests to expand its facilities, then LKPL will afford
Axiometric the opportunity to lease space in the new
facilities under a mutually acceptable separate commercial
rental agreement. If Axiometric does not then wish to rent
office space from LKPL, then LKPL may terminate Axiometric's
license to use work space in LKPL's facility upon 60 days
notice.
2.4 Axiometric shall be solely responsible for providing all
equipment, furniture, supplies and other personal property
that Axiometric deems appropriate to operate its business.
LKPL will have no obligation to provide any special facilities
or infrastructure unless otherwise negotiated.
2.5 LKPL will have no liability whatsoever for any of Axiometric's
equipment, furniture, supplies or other personal property;
Axiometric will use the space at its sole risk.
2.6 Axiometric will have the right to terminate the license to use
the office space and to move out of the office space at any
time upon two weeks notice.
2.7 Axiometric must at all times use the office space strictly in
accordance with terms and conditions stated in LKPL's lease
for the space.
2.8 Axiometric must indemnify and hold LKPL and its officers,
directors, stockholders, agents, contractors, employees and
guests (collectively, the "Indemnified Parties") harmless from
and against any and all Loss that the Indemnified Parties may
incur arising from or relating to Axiometric use of the office
space, including but not limited to any Loss suffered by the
Indemnified Parties as a result of any negligent acts or
omissions of Axiometric, its employees, agents, contractors
and representatives, or anyone else working under Axiometric
or in the office with the permission of Axiometric.
3. AUTOMATIC METER READING
Axiometric and LKPL agree to jointly pursue accessing and commercially
penetrating the AMR market by developing a suite of qualified and
commercially marketable product suites for that market, marketing and
selling that suite of products. The following shall be the general
roles and responsibilities of the two companies with respect to AMR
efforts:
3.1 AMR Products
3.1.1 Water Meter Development: Axiometric and LKPL are
jointly developing an AMR product for remote reading
of residential water utility meters (hereafter the
Water Meter). The Water Meter is a hardware device
with integral software. The software includes, under
license, the Axiometric wireless mesh networking
intellectual property. The Water Meter is capable of
interfacing with a variety of water meter registers,
recording water usage, logging various exceptional
conditions, and reporting them via a radio link. The
Water Meter is also capable of forming a mesh network
with other Water Meters to extend the radio reporting
range using the aforementioned Axiometric mesh
networking intellectual property. The Water Meter
software and hardware are based on existing
Axiometric electric meter AMR hardware and software
products; joint ownership of the Water Meter does not
convey joint ownership of those existing products or
of the mesh networking intellectual property.
New software and hardware designs and intellectual
property developed in the course of the Water Meter
development are jointly owned; specifically, the
algorithms used to collect data directly from a Water
Meter using a point-to-point link (drive-by data
collection), the specific hardware designs related to
water register interface, battery power management,
and other intellectual property specifically
described and mutually agreed in writing as
amendments to this Agreement. Joint ownership conveys
to each party individually the right to use, sell,
modify, and create derived works from said
intellectual property, as well as the right to
sub-license these rights to others.
3.1.2 Energy AMR Product Suite: Axiometric has developed an
AMR product suite for use in energy (electric)
metering consisting of a meter insert for interfacing
to energy meters, recording usage and exceptional
conditions, and transmitting the information via
radio to a central collector. Axiometric has also
developed mesh networking intellectual property to
allow the meter inserts to relay information from
insert to insert thus extending the range and
reliability of such information transmissions.
Axiometric has also developed a central collection
unit (hereafter Mesh Controller or Gateway) capable
of collecting usage and other information from a
large number of meter inserts and relaying that
information onto another communications medium
(radio, GSM, etc.) for delivery to a processing
system. Axiometric has also developed processing
software for recording the collected data to a
database, presenting
and managing that information, and exporting the data
to other processing systems. This collection of
products forms an energy metering (electric) AMR
Product Suite that is owned by Axiometric.
3.1.3 Axiometric and LKPL may develop other AMR Product
Suites (e.g. for gas metering) and ownership of those
AMR Product Suites will be held individually by the
developer of the suite or jointly if mutually agreed
to in writing.
3.2 Marketing and Sales: Regardless of ownership and in order to
coordinate marketing and prevent overlap and confusion by
customers and potential customers, all sales and marketing
shall be conducted as follows:
3.2.1 Axiometric shall have the exclusive right to market
and sell AMR Product Suites to entities whose
corporate headquarters are physically located in the
United States and U.S. territories with the exception
of Datamatic as defined in 3.3.1 and 3.3.2 below
3.2.2 LKPL shall have the exclusive right to market and
sell AMR Product Suites to Datamatic LTD, a Plano TX
corporation (hereafter Datamatic).
3.2.3 LKPL shall have the exclusive right to market and
sell AMR Product Suites to entities whose corporate
headquarters are physically located outside the
United States and its territories.
3.2.4 The proceeds of all sales shall be distributed
pursuant to the terms of this Agreement as set forth
in Section 3.3 below.
3.3 Proceeds: As a result of the different ownership interests,
marketing relationships, and this Agreement, the proceeds of
sales of AMR Product Suites shall be as follows unless
otherwise mutually agreed in writing:
3.3.1 For sales of Water Meter AMR Product Suites to
Datamatic, LKPL shall set the price of Water Meter
AMR Product Suite sales to Datamatic. LKPL shall pay
Axiometric the higher of a) five-percent (5%) of the
Gross Proceeds or b) twenty-five-percent (25%) of the
Net Proceeds of all Water Meter AMR Product Suite
sales.
3.3.2 For sales of Electric Meter AMR Product Suites to
Datamatic, Axiometric shall set the price of Electric
Meter AMR Product Suite sales to Datamatic. LKPL
shall pay Axiometric Net Proceeds less the higher of
a) five-percent (5%) of the Gross Proceeds or b)
twenty-five-percent (25%) of the Net Proceeds.
3.3.3 For sales of AMR Product Suites by LKPL, other than
sales to Datamatic as defined above: LKPL shall pay
Axiometric the higher of:
a) five-percent (5%) of the Gross Proceeds OR
b) twenty-percent (25%) of the Net Proceeds
3.3.4 For sales of AMR Product Suites by Axiometric, other
than sales to Datamatic as defined above, and other
than AMR product suites for use in electric/energy
metering: Axiometric shall pay LKPL the higher of:
a) five-percent (5%) of the Gross Proceeds OR
b) twenty-percent (25%) of the Net Proceeds
3.3.5 Payments to Axiometric for sales of the AMR Product
Suite shall be in lieu of any licensed IP Royalty
payments for those products.
3.4 Manufacturing: During the term of this Agreement, Axiometric
shall issue a Request for Manufacture (RFM) for any AMR
hardware to be sold by Axiometric under the terms of this
Agreement. The RFM shall specify delivered product cost,
credit requirements, delivery schedules, warranty service,
quality using industry standard terms, and other industry
standard manufacturing requirements. As the preferred
manufacturer, LKPL shall have first right of refusal on all
such RFMs. If LKPL does not respond to an RFM within thirty
(30) days, or cannot provide competitive terms (such as cost,
credit, quality, schedule), Axiometric will be free to award
the manufacturing contract to an alternate manufacturer.
3.5 Payments: As defined in section 3.3 above, selling parties may
owe the other party some portion of the Proceeds. The payment
of amounts owed shall be performed as follows:
3.5.1 Payments due shall be made within 45 days of the
close of each calendar quarter.
3.5.2 Payments that are not received within thirty (30)
days after their due date will bear interest at the
rate of twelve percent (12.0%) per annum compounded
monthly from the due date until such payment is
received.
3.5.3 Payments not received within sixty (60) days after
their due date will be considered a material breach
of this Agreement and the party due payment may
pursue any and all legal action to recover the
payment and reasonable legal fees incurred in the
pursuit of said payment.
3.5.4 Both parties are entitled to reports of sales and to
conduct periodic audits to ensure accuracy of
Payments as follows:
a. Each party will provide to the other a
quarterly report (in hard copy and
electronic copy (if applicable)) showing the
AMR Product Suite sales including the Gross
Proceeds and the Production Costs.
b. Each party shall have the right to conduct
an audit after the end of each calendar year
to verify the accuracy of the other party's
quarterly 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 a Payee's audit shows that the
Gross Proceeds or Production Costs of the
Payor resulted in an under-payment to the
Payee, then the Payor shall have the right,
at the Payor's cost, to have its own auditor
verify the Payee's audit. If the Payor audit
confirms the report of the Payee's auditor,
then the Payor will pay the deficiency
within fifteen (15) days from the time Payee
invoices for the deficiency.
d. In the event a Payee's audit shows that the
Gross Proceeds or Production Costs of the
Payor resulted in an under-payment of more
than three percent (3.0%) to the Payee, then
the Payor shall have the right, at the
Payor's cost, to have its own auditor verify
the audit. If the Payor audit confirms the
report of the Payee's auditor, then the
Payor will pay the deficiency and the cost
of the Payee's audit within fifteen (15)
days from the time Payee invoices for those
fees and provides standard proof of the time
and expenses incurred.
4. RELATIONSHIP OF THE PARTIES
4.1 The parties will be joint venturers only as to those
activities that they jointly undertake for the AMR market as
described in section 3 above; otherwise they shall be
independent of each other, with full control over their
respective activities without the need to account to the
other, and independent contractors as to all work performed
under separate agreements. Even though the parties will be
joint ventureres as to the AMR market, neither party will have
the right to bind the other in any way without the other
party's express consent, and this Agreement shall not
otherwise be construed to make any party the agent, assignee,
employee,
fiduciary, investor, joint venturer, partner, or
representative of any other party.
5. TERM
This Agreement will remain in force for perpetuity or until and unless
otherwise mutually agreed or amended in writing by both parties.
6. NOTICES
All notices and communications required or permitted to be given under
this Agreement will be deemed given after receipt when sent by United
States Postal Service as registered or certified mail, postage prepaid,
and addressed to the other party at the notice addresses set forth on
the signature page (unless by such notice a different person or address
shall have been designated)
7. ADDITIONAL PROVISIONS.
7.1 This Agreement may not be assigned in whole or in part by
either party without prior written consent of the other.
7.2 All actions, cases, suits and proceedings in connection with
this Agreement shall be brought in Maryland. All persons
affected by this Agreement specifically consent to the
personal jurisdiction of and venue in said courts. No action,
case, suit or proceeding, regardless of form, arising out of
or related to this Agreement, may be brought by either party
more than one (1) year after the cause of action has arisen,
or in the case of nonpayment, more than two (2) years from the
date of the last payment. ALL ACTIONS, CASES, SUITS AND
PROCEEDINGS SHALL BE HEARD WITHOUT A JURY. ALL PERSONS
AFFECTED BY THIS AGREEMENT SPECIFICALLY WAIVE ALL RIGHT TO A
TRIAL BY JURY AND SPECIFICALLY CONSENT TO THE PERSONAL
JURISDICTION OF AND VENUE IN SAID COURTS.
7.3 If suit or action is instituted to enforce any of the terms of
this Agreement, then the prevailing party shall be entitled to
recover from the other party such sums as the Court may
adjudge reasonable as attorney's fees at trial on or appeal of
such suit or action, in addition to all other sums provided by
law.
7.4 This Agreement shall be construed and governed in accordance
with the laws of the State of Maryland regardless of the place
or places of its physical execution and performance.
7.5 This Agreement includes all Recitals, attachments, exhibits,
schedules, the Software License Agreement, and contains the
entire agreement of
the parties. It may not be changed orally but only by
agreement in writing signed by the party against whom
enforcement of any amendment, waiver, change, modification,
extension or discharge is sought.
IN WITNESS WHEREOF, LKPL and Axiometric have executed this Agreement below.
LINK PLUS CORPORATION AXIOMETRIC, LLC
By: By:
--------------------------- --------------------------------
Xxxxxx X. Xxxxx, Xx. Xxxxx Xxxxx
Chairman, CEO Managing Director
Notice Addresses:
Link Plus Corporation
0000 Xxxxxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Chief Operating Officer
Axiometric, LLC
00000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
EXHIBIT A - SELECTED DEFINITIONS
"Axiometric" means Axiometric, LLC. a Maryland limited liability company, having
a principal place of business at 00000 Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000.
"Effective Date" means July 15, 2005.
"Inventions" include creations, discoveries, hardware, inventions, prototypes,
product suites, software, works of original authorship, and other intellectual
property.
"AMR Product Suite" is a collection of hardware and software products that
together allow a utility to record, transmit, collect, and process utility (e.g.
gas, water, electric) customer usage data and exceptional conditions.
"LKPL" means Link Plus Corporation, a Delaware corporation having a principal
place of business at 0000 Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx, 00000
"Loss" includes actions, claims, costs, debts, demands, encumbrances, expenses
(including all reasonable attorneys fees, costs and litigation expenses), fines,
liens, liabilities and obligations.
"Gross Proceeds" means the actual sums collected for the sale of any and all
products in an AMR Product Suite.
"Net Proceeds" means the Gross Proceeds less the Production Cost (as defined
below).
"Production Cost" means actual cost (including reasonable and competitive
allowances for: materials, labor, overhead, other fixed costs, delivery, profit,
taxes and duties) incurred in manufacturing and delivering AMR products.
Reasonable and competitive is defined as being at or below the costs of
competing manufacturers with similar capabilities manufactured under similar
terms.
"Royalty" means the royalty payable by LKPL to Axiometric under the Software
License Agreement between the parties.
