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EXHIBIT 10.15
TECHNOLOGY LICENSE AGREEMENT
This Technology License Agreement ("Agreement") is entered into by and
between Founding Partners, a California general partnership ("Licensor") and
Artecon, Inc., a California corporation ("Licensee"), as of August 21, 1997
("the Effective Date").
WHEREAS, Licensor is a party to that certain Technology Purchase
Agreement of even date herewith between Licensor and Falcon Systems, Inc. (the
"Technology Purchase Agreement") providing for, among other things, the purchase
by Licensor of all right, title and interest in and to the technology assets
described on Exhibit A hereto (the "Assets").
WHEREAS, Licensee desires to exploit the Assets by, among other things
making, having made, using and selling products incorporating the Assets (the
"Products");
WHEREAS, Licensor is willing to license all of its right, title and
interest in and to the Assets to Licensee upon the terms and conditions provided
herein.
AGREEMENT
NOW THEREFORE, in connection of the mutual promises contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, IT IS HEREBY AGREED AS FOLLOWS:
1. LICENSE. Licensor grants to Licensee an exclusive (even as to
Licensor), worldwide, fully paid-up, royalty-free, perpetual right and license,
with the right to sublicense (at any level), to make, have made, reproduce,
sell, have sold, distribute, modify, alter and/or improve, and/or otherwise use
or exploit in any manner whatsoever, all of Licensor's right, title and interest
in and to (now owned or hereafter acquired), the Assets.
2. CONSIDERATION. In full consideration of the grant of license herein,
Licensee agrees to make monthly payments to Licensor in the amount of $39,000,
with the first payment due on the date that is one (1) month from the date
hereof and subsequent payments due each monthly anniversary thereafter for a
period of five years following the date hereof.
3. MISCELLANEOUS.
3.1 IMPROVEMENTS; SUPPORT; DILIGENCE. Any and all modifications,
alterations and improvements of or to, and any and all derivative works based
on, the Assets shall be, as between Licensor and Licensee, the sole property of
Licensee.
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Licensor shall have no obligation to provide any support, maintenance, upgrades
or the like with respect to the Assets. Licensee shall have no obligation to
commercialize the Assets.
3.2 WARRANTY DISCLAIMER. The rights licensed by Licensor to
Licensee hereunder are limited solely to the right, title and interest in and to
the Assets purchased by Licensor pursuant to the Technology Purchase Agreement.
LICENSOR DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESSED OR
IMPLIED, WITH RESPECT TO THE ASSETS INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM A
COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND WARRANTIES CONCERNING THE
NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
3.3 LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE
LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND
OR NATURE WHATSOEVER, SUFFERED BY THE OTHER PARTY, ANY END USER, CUSTOMER,
VENDOR OR ANY DISTRIBUTOR, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS
INTERRUPTIONS OR OTHER ECONOMIC LOSS ARISING OUT OF THE PERFORMANCE OR
NON-PERFORMANCE HEREUNDER OR ANY USE OF OR FAILURE TO BE ABLE TO USE THE
LICENSED DELIVERABLES.
3.4 TERM OF THE AGREEMENT. This Agreement shall commence on the
Effective Date and shall remain in full force and effect in perpetuity.
3.5 INDEPENDENT CONTRACTORS. Performance by the parties under
this Agreement shall be as independent contractors. Nothing contained herein or
done in pursuance of this Agreement shall constitute the parties entering upon a
joint venture or partnership, or shall constitute either party the agent for the
other for any purpose or in any sense whatsoever.
3.6 ENTIRE AGREEMENT. This Agreement represents the complete and
exclusive statement of the agreements concerning this license between the
parties and supersedes all prior representations between them concerning this
license.
3.7 AMENDMENTS. This Agreement may only be amended by written
agreement or other written instruments executed by both parties hereto.
3.8 SEVERABILITY. If any part of this Agreement is found invalid
or unenforceable, this Agreement will be enforceable to the maximum extent
permitted by law, and all other parts of the Agreement will remain in force.
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3.9 ASSIGNMENT. Licensor shall not be able to assign this
Agreement without the written consent of Licensee. During the period which
Licensee is a party to that certain Revolving Line of Credit and Term Loan of
even date herewith by and between Licensee and Sanwa Bank, Licensee shall not be
able to assign this Agreement without the written consent of Sanwa Bank.
3.10 MUTUAL COOPERATION. Each party to this Agreement agrees to
perform all acts necessary to permit the other party to obtain the full benefits
of this Agreement, which acts may include executing documents or assisting or
cooperating in legal proceedings.
3.11 GOVERNING LAW. This Agreement shall be governed and
interpreted in accordance with the laws of the State of California.
3.12 BANKRUPTCY. The Partners agree that the rights herein
licensed constitute "intellectual property" as defined in 11 U.S.C. Section
365(n), and Licensee shall be entitled, at its election, to the protections
provided therein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the Effective Date.
"Licensor" Founding Partners
By:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, General Partner
/s/ Xxxx X. Xxxxxxxxxxx
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Xxxx X. Xxxxxxxxxxx, General Partner
/s/ X.X. Xxxxx
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X.X. Xxxxx, General Partner
"Licensee" Artecon, Inc.
By: /s/ Xxxxx X. Xxxxxxx
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Title: President
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EXHIBIT A
All inventions, inventions disclosures, mask works and mask registrations,
know-how, discoveries, improvements, designs, trade secrets, shop and royalty
rights, source code, object code, product rights, employee covenants and all
other types of intellectual property including but not limited to any and all
records, files, specifications, designs, drawings, data, plans, sketches, work
standards, manufacturing and process information, documentation, theories of
operation, repair manuals, service manuals, notebooks, writings, pictures,
drawings, magnetic tapes, computer programs and protocols relating to the Falcon
network file server product line called FastfilePro.
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