TECHNOLOGY LICENSE AND COMMERCIALIZATION AGREEMENT
TECHNOLOGY LICENSE AND COMMERCIALIZATION AGREEMENT
This Technology License and Commercialization Agreement (the "Agreement") is entered into between
Quantitative Alpha Trading Inc. ("QAT") and Mobile Integrated Systems, Inc. ("MOBI"), for the purpose of
setting forth the terms and conditions upon which QAT shall grant to MOBI a license to use the software and
the associated intellectual property rights related thereto described in Schedule A (the “Products”).
The Effective Date of this Agreement is August 17, 2012.
WHEREAS, QAT is the sole and exclusive owner of the Products and the associated intellectual property
related thereto;
WHEREAS QAT and MOBI have agreed to enter into a business combination transaction to be effected by
way of plan of arrangement whereby MOBI, through its wholly-owned subsidiary 2338584 Ontario Inc.
("Newco"), will acquire all of the outstanding common shares in the capital of QAT and QAT and Newco will
amalgamate; and
WHEREAS, subject to the terms and conditions set forth in this Agreement, QAT wishes to license to MOBI
and MOBI wishes to license from QAT the Products and the proprietary technology related thereto for use in
connection with the sale and use of the Products.
NOW THEREFORE, in consideration of the covenants and conditions hereinafter set forth, the parties agree
as follows:
1.
DEFINITIONS
"Confidential Information" shall have the meaning specified in Section 6.1 of this Agreement.
"Derivative Work" shall have the meaning specified in Section 2.1(a)(ii) of this Agreement.
"Disclosing Party" shall have the meaning specified in Section 6.1 of this Agreement.
"Documentation" means the user manuals and operator instructions issued by QAT in conjunction with the
Products.
"Effective Date" means the date set forth above.
"Intellectual Property Rights" means any right or protection existing from time to time in a specific
jurisdiction under any patent law, copyright law, moral rights law, trade secret law, domain name law, semi-
conductor chip protection law, database law, trade-xxxx law, privacy law, unfair competition law or other
similar laws and includes legislation by governmental authorities and judicial decisions under common law or
equity, and the right to apply to register such rights.
"Licensed Rights" shall have the meaning specified in Section 2.1(a) of this Agreement.
“Net Income” means amounts actually received by either party with respect to this Agreement and the
Products including Derivative Works, the gross amount invoiced for sales of the Products and such
Derivative Works in bona fide arm’s length sales by the parties to third parties, less the following deductions
from such amounts which are actually incurred, allowed, and accrued by QAT and MOBI including:
(a) developments costs; and
(b) marketing and sales costs
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as agreed to by the parties in advance.
"Receiving Party" shall have the meaning specified in Section 6.1 of this Agreement.
"Products" means the object code form of each of the application software programs licensed to MOBI
pursuant to the terms of this Agreement as described and separately listed in Schedule A. For greater
certainty, “Products” shall include all Documentation and all modifications, improvements, enhancements,
new versions, and bug or error fixes to the Products that are provided from time to time by QAT to MOBI
under the terms of this Agreement. For the purposes of Section 2.1, Products shall also include any
Derivative Works.
"Term" shall have the meaning specified in Section 7.1 of this Agreement.
"Territory" means worldwide.
2.
LICENSE GRANT
2.1
Licensed Rights
(a)
QAT hereby grants to MOBI, subject to the terms and conditions of this Agreement, a
perpetual, non-exclusive, fully-transferable, sublicenseable, irrevocable, royalty-free and
worldwide license to use, modify, market, distribute, offer for sale, promote and otherwise
fully exploit the Products (the "Licensed Rights"). For greater certainty, the Licensed
Rights granted pursuant to this Section 2.1(a) shall specifically include:
(i)
the right to reverse engineer, decompile and disassemble the Products; and
(ii)
the right to modify, adapt and otherwise create derivative works based upon the
Products (each a "Derivative Work").
(b)
MOBI may make additional copies of the Products for archival or backup purposes. All
archival and backup copies are subject to the provisions of this Agreement and all titles,
trade-marks, and copyright and restricted rights notices shall be reproduced on such copies.
3.
DATA TRANSFER
3.1
Upon and following the successful and valid execution of this Agreement, QAT shall provide to
MOBI, at no cost to MOBI, all the pertinent information it has about the Products including, but not
limited to, one electronic and one hard copy of each Product source code listed in Schedule A and
any and all other information whatsoever that is relevant for the development, marketing approval,
and other commercialization of the Products.
4.
REVENUE SHARING
4.1
All Net Income paid to either of the parties shall be shared equally among the parties.
4.2
In the event that either party is required to pay goods and services, sales, or other taxes based on
the Products provided under this Agreement or on MOBI’s use of the Products then QAT shall
indemnify MOBI for any and all such taxes.
5.
OWNERSHIP
5.1
MOBI acquires the right to use and exploit the Products as described herein and does not acquire
any rights of ownership. All right, title, and interest in and to the Products, including without
limitation all related Intellectual Property Rights, shall at all times remain with QAT.
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5.2
MOBI shall own all right, title and interest in and to any Derivative Works, including all related
Intellectual Property Rights.
6.
NONDISCLOSURE
6.1
“Confidential Information” means this Agreement, the Products, source code, object code and any
proprietary tools, proprietary knowledge, trade secrets, know-how or proprietary methodologies
disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) and not
generally known by non-party personnel, which the Receiving Party may gain access to or
knowledge of as a result of this Agreement. Confidential Information does not include information
(a) already in the possession of the Receiving Party without an obligation of confidentiality, (b)
hereafter rightfully furnished to the Receiving Party by a third party without a breach of any separate
nondisclosure obligation, (c) publicly available without breach of this Agreement (i.e., information in
the public domain), (d) furnished by the Disclosing Party to a third party without restriction on
subsequent disclosure, or (e) independently developed by the Receiving Party without reliance on
the Confidential Information.
6.2
The Receiving Party shall observe complete confidentiality with respect to the Confidential
Information, and shall take all reasonable steps to protect the Confidential Information from any use,
reproduction, publication, disclosure, or distribution except as specifically authorized by this
Agreement. The Receiving Party shall promptly notify the Disclosing Party of any known
unauthorized use or disclosure of the Confidential Information and will cooperate with the Disclosing
Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary
rights.
6.3
In the event of a breach of this Article 6, monetary damages will not be an adequate remedy, and
therefore, in addition to any other legal or equitable remedies, the Disclosing Party shall be entitled
to seek an injunction or other equitable relief against such breach without necessity of posting bond
or security, which is expressly waived.
6.4
Either party may disclose the general existence and nature of this Agreement, but may not disclose
the specific terms of this Agreement without the prior consent of the other party.
7.
TERM AND TERMINATION
7.1
This Agreement and each license granted hereunder shall continue in perpetuity, unless otherwise
terminated as provided in this Article 7 (the "Term").
7.2
MOBI may terminate this Agreement or any license at any time upon ten (10) days prior written
notice.
7.3
The termination of this Agreement or any license shall not limit either party from pursuing any other
remedies available to it, including injunctive relief.
8.
WARRANTIES AND LIMITATION OF LIABILITY
8.1
Infringement Indemnity
(a)
QAT will defend and indemnify MOBI against all costs (including reasonable legal fees)
arising from a claim that the Products furnished and used within the scope of this
Agreement infringes the Intellectual Property Rights of any third party.
(b)
QAT shall have no liability for any claim of infringement based on the combination,
operation, or use of any Products furnished under this Agreement with programs or data not
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furnished by QAT (including any Derivative Works created by the MOBI) if such infringement
would have been avoided by the use of the Products without such programs or data.
8.2
Warranty
(a)
QAT warrants that it owns the Products and has all rights necessary to grant the Licensed
Rights pursuant to Section 2.1.
(b)
QAT warrants that: for a period of ninety (90) days from the date of delivery to MOBI the
media on which the Products are furnished will be free of defects in materials and
workmanship under normal use; and (ii) the Products substantially conforms to its published
specifications and operates in accordance with the Documentation.
8.3
No Warranty
(a)
For the avoidance of doubt, nothing contained in this Agreement shall be construed as a
warranty by MOBI that any commercialization, development or sales to be carried out by it
in connection with this Agreement will actually achieve its aims or any other results and
MOBI makes no warranties whatsoever as to any results to be achieved in consequence of
the carrying out of any such commercialization. Furthermore, MOBI makes no
representation to the effect that the commercialization, development or sale of the Products,
or any part thereof, will succeed, or that it shall be able to sell the Products in any quantity.
9.
GENERAL TERMS
9.1
All recitals and appendices are hereby incorporated into this Agreement. This Agreement may be
executed in any number of counterparts and/or duplicate originals.
9.2
This Agreement may not be assigned, in whole or in part, by either party without the prior written
consent of the other party. Any purported assignment in contravention of this section is null and
void. Subject to the foregoing, this Agreement will bind and inure to the benefit of any successors or
assigns.
9.3
Singular terms shall be construed as plural, and vice versa, where the context requires. Section
headings are a matter of convenience and shall not be considered part of this Agreement.
9.4
This Agreement is the complete and exclusive statement of the understandings of the parties, and it
supersedes and merges all prior proposals and understandings, whether oral or written, relating to
the subject matter of this Agreement. This Agreement may not be modified except in writing, signed
by an officer of QAT and MOBI, and expressly referring to this Agreement.
9.5
Neither party will be responsible for failure of performance, other than for an obligation to pay
money, due to causes beyond its control, including without limitation: (i) acts of God or nature; (ii)
labour disputes; (iii) sovereign acts of any federal, provincial, state or foreign government; or (iv)
shortage of materials.
9.6
This Agreement shall be governed by and construed in accordance with the laws of the Province of
Ontario and the federal laws of Canada, but without giving any effect to the choice of law principles
thereunder.
9.7
Any notice or other communication hereunder shall be in writing and, if delivered, it shall be
considered received on the day it is given to an officer of the recipient, or if by facsimile transmission
or, if any email address is provided below, by email transmission in PDF format during normal
business hours on a business day, it shall be considered received on the same day as the
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transmission thereof was successfully completed to the number or email address provided as
follows:
In the case of MOBI:
Mobile Integrated Systems, Inc.
00 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX X0X 0X0
Attention: Xxxxxx P.J.B. Xxxxxx, President and Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxx Canada LLP
0000, 000 - 0xx Xxxxxx XX
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxxxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
In the case of QAT:
Quantitative Alpha Trading Inc.
000 - 00 Xxxxxxx Xxxxxx
Xxxxxxx, XX X0X 0X0
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxx & Berlis LLP
Brookfield Place
000 Xxx Xxxxxx
Xxxxx 0000, Xxx 000
Xxxxxxx, XX X0X 0X0
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
9.8
If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of the Agreement shall continue in full force and effect.
9.9
The waiver of one breach or default shall not constitute the waiver of any subsequent breach or
default, and shall not act to amend or negate the rights of any party.
9.10
The provisions of Definitions as well as Articles 5, 6, 7, 8 and 9 shall survive termination of this
Agreement.
[SIGNATURE PAGE TO FOLLOW]
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MOBILE INTEGRATED SYSTEMS, INC.
QUANTITATIVE ALPHA TRADING INC.
(signed) "Xxxxxx Xxxxxx"
(signed) "Xxx XxXxxxxx"
Signature
Signature
_______________________________________
_______________________________________
Xxxxxx Xxxxxx
Xxx XxXxxxxx
Title: Chief Executive Officer
Title: Chief Executive Officer
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SCHEDULE A
Products
[LIST OF PRODUCTS REDACTED]
