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Exhibit 10.31
PORTIONS OF EXHIBIT OMITTED
And Request for Confidential Treatment Filed with the Commission.
TECHNOLOGY LICENSE AGREEMENT
TECHNOLOGY LICENSE AGREEMENT made this 2nd day of March, 2000, by and
between BITWISE DESIGNS, INC., a Delaware corporation ("Bitwise"),
XXXXXXXXXXXX.XXX, INC., a Delaware corporation (Authentidate") and XXXXXXXXX NEW
TECHNOLOGIES AGi.G, a German corporation ("Xxxxxxxxx"). Bitwise, Authentidate
and Xxxxxxxxx may be referred to herein as the "Parties."
The Parties agree as follows:
1. DEFINITIONS
All definitions shall be taken from the Joint Venture Agreement entered
into by the Parties on March __, 2000 ("Joint Venture Agreement"). Wherever
there is a conflict in meaning, the definitions of this License shall take
precedence over conflicting definitions set forth in the Joint Venture
Agreement.
"Intellectual Property" means, wherever existing in the world, (i)
patents, whether in the form of utility patents or design patents, and all
pending patent applications for registration thereof, (ii) trademarks, trade
names, service marks, domain names, designs, logos, trade dress and trade
styles, whether or not registered, and all pending applications for registration
thereof, (iii) copyrights, whether or not registered, and all pending
applications for registration thereof, (iv) know-how, inventions, research
records, trade secrets, confidential information, produce designs, engineering
specifications and drawings, technical information, formulas, customer lists,
supplier lists and market analyses, (v) computer software and programs, and
related flow charts, programmer notes, documentation, updates, and data, whether
in object or source code form, and (vi) all other similar intellectual property
rights, whether or not registered.
"Bitwise Authentidate Technology", [ * * * ]
"Field of Use" means the online service allowing users to verify the
date, time, content and authorship of digital data, including but not limited to
written text, documents, digital files and images. Field of Use does not include
any other service except the Service and Improvements using technology or
Intellectual Property developed by Bitwise, Authentidate or their affiliates.
"Improvements" means (i) all derivative works, discoveries and/or
inventions, whether patentable or not, made by Authentidate or Licensee, acting
alone or jointly, that constitutes a modification, enhancement, extension or
improvement of the Bitwise Authentidate Technology and (ii) all Intellectual
Property developed jointly by Authentidate and Licensee, including any and all
applications or registrations therefor.
"Joint Entities" means the entities formed by the Parties under the
Joint Venture Agreement to own and operate services related to the Field of Use
in each country in the Territory defined by the Joint Venture Agreement.
"International" is the entity Authentidate International Holdings AG to
be established under the Joint Venture Agreement.
International and the Joint Entities may be referred to herein as
"Licensee".
2. SCOPE OF LICENSE AND RIGHTS RETAINED
2.1 [ * * * ]
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2.2 Authentidate retains all rights, title and interest in and to
the Bitwise Authentidate Technology. At no time during or after the Term shall
Licensee use the rights conferred by Authentidate under this License as a basis
to (i) challenge Authentidate's rights in and to the Bitwise Authentidate
Technology or (ii) use the Bitwise Authentidate Technology in connection with
any of its products or services other than in the Field of Use and otherwise in
accordance with this License. To the extent the Bitwise Authentidate Technology
is based on a license(s) granted by a third party(ies), Authentidate shall be
obligated to provide the benefits of such license(s) to the Licensee.
2.3 Authentidate and Licensee agree that, as between Authentidate
and Licensee, Authentidate shall be the owner of all right, title, and interest
in and to any Improvements. Licensee agrees that, to the extent permitted by
law, all Improvements developed by Licensee shall be "work made for hire" owned
by Licensee. Whether or not such Improvements constitute work made for hire
owned by Authentidate, Licensee hereby assigns, transfers and conveys, and
agrees to assign, transfer and convey to Authentidate all right, title and
interest Licensee may have or acquire in and to any Improvements. Licensee shall
provide such other assistance as Authentidate may require to establish
Authentidate's sole rights to the Improvements, including but not limited to,
providing assistance in securing and enforcing patent protection, copyright
registrations and other proprietary rights in any and all countries, and signing
all documents necessary for patent, copyright and other applications and
registrations, and any assignments thereof. All such Improvements shall be
included in the Bitwise Authentidate Technology and be included within and
subject to the Joint Venture Agreement and this License.
2.3.1 Development of Improvements by Licensee
Licensee agrees to immediately inform Authentidate of any developments
relating to any Improvements conceived, developed, created or made by Licensee
alone or in conjunction with Authentidate.
2.3.2 Rights of Third Parties and Employees
To the fullest extent necessary and permitted under applicable contract
or law, Licensee shall obtain an assignment from each of its employees,
contractors, and third parties involved in the conception, development,
creation, or making of any Improvements of all right, title and interest in the
Improvements for the benefit of Licensee, in order that Licensee may in turn
assign such rights to Authentidate as required under Section 2.3 above.
2.4 Authentidate shall provide source code related to the Bitwise
Authentidate Technology
Authentidate shall provide Licensee the source code related to the
Bitwise Authentidate Technology (except for software not owned by Authentidate
and for which Authentidate does not have source code distribution rights), and
except to the extent necessary to develop localized versions of the Authentidate
software, the source code shall not be licensed or delivered to Licensee, but
shall be held in escrow as provided below. The source code will be updated by
Authentidate not less frequently than semi-annually, including all changes to
the software since the previous update. The source code shall be held in escrow
in the United States by an independent third party for the benefit of Licensee
in accordance with the provisions of the escrow agreement by and among the
Parties and the escrowee. The annual cost of the escrow agent to retain the
source code in escrow shall be paid by International.
2.5 To the extent that web sites operated by Licensee or its or
their agents advertise or provide services related to Bitwise Authentidate
Technology or provide links to such services, the web sites shall contain text
primarily in the official language(s) of the country in which the site is
intended to serve. Furthermore, any domain names associated with such web sites
shall end with a suffix associated with the country the web site is intended to
serve (e.g., "de" for Germany and "fr" for France). During the duration of the
License, the web site and domain names shall be the property of Licensee. Upon
termination of the License, the ownership of the domain names shall revert to
Authentidate.
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2.6 To the extent that Bitwise/Authentidate enters into agreement
with third parties to provide unique services other than the Service using the
Bitwise Authentidate Technology, Licensee agrees to provide the Service for such
services in the Territory and conversely Bitwise/Authentidate agrees that they
shall not provide the Service for such other services within the Territory.
2.7 Licensee agrees not to enter any agreements with third
parties, and will not itself provide unique services other than the Service,
using the Bitwise Authentidate Technology.
3. QUALITY CONTROL
3.1. Licensee shall use the trademark associated with Bitwise
Authentidate Technology (the "Trademark") in connection with the Field of Use
and any marketing, advertising and promotional material only in the manner
approved in writing by Authentidate prior to use by Licensee. Licensee shall
only use the Trademark on or in connection with the Field of Use. Licensee shall
ensure that services in connection with which the Trademark are used hereunder
shall be of a quality at least as high as the quality of the services provided
by Authentidate as of the date hereof and in compliance with all applicable
laws, rules, regulations, policies, requirements and the like of federal, state,
local and other governmental, administrative or judicial authorities. Licensee
acknowledges that if its use of the Trademark are of inferior quality, the
substantial goodwill which Authentidate possesses in the Trademark may be
impaired. Authentidate will provide Licensee written notice of its belief that
Licensee's use of the trademark is of inferior quality and the reasons therefor,
and Licensee shall thereafter have 30 days to implement a program for the prompt
termination of the non-inferior use of the trademark; provided, however, the
foregoing shall not restrict termination of the License by Bitwise and/or
Authentidate, unless a court determines otherwise. Licensee must obtain
Authentidate's prior written approval for any other use of the Trademark.
Authentidate may withhold its approval in its sole discretion.
3.2. Licensee shall, at its sole cost and expense, prior to its
engaging in the use of the Trademark, and subsequent thereto upon reasonable
request by Authentidate, supply to Authentidate samples of the use of the
Trademark, including promotional and written materials, for purposes of
inspection and written approval and to determine if the use of the Trademark
meet the standards of quality acceptable to Authentidate. Authentidate shall not
unreasonably withhold the written approval set forth in this section. To further
determine compliance with this and the quality controls set forth herein,
Authentidate shall have the right at any time during business hours and without
creating any unreasonable disturbance to inspect the premises of Licensee.
Authentidate shall provide Licensee its standards of quality usage in advance,
either by providing samples or written description of the same.
3.3. Licensee shall not use the Trademark in any advertising or
promotional material or in connection with the Field of Use or conduct any
activities in a manner which may modify, alter, detract from or impair the
integrity, character, or dignity of the Trademark or reflect unfavorably upon
Authentidate; provided, however, that Licensee shall not be in breach of this
Section 3.3 if Authentidate has approved such use pursuant to Section 3.1.
3.4. Licensee agrees that whenever it uses any of the Trademark
which are registered, it shall do so in connection with the registration symbol
"(R)".
3.5. Should Licensee fail to comply with any one or more of the
provisions of this Section 3, or fail, to the reasonable satisfaction of
Authentidate, to meet the standard of quality with respect to the Services
established by Authentidate, Authentidate shall have the right to terminate this
Agreement after providing Licensee written notice of the same and after Licensee
fails to implement, within thirty (30) days of such notice or determination that
Licensee has failed to comply with any one on more provisions of this Article 3,
or has failed to meet such standard of quality established by Authentidate, a
program to promptly meet the standard of quality of Authentidate; provided,
however, the foregoing shall not restrict termination of the License unless a
court determines otherwise.
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4. PROSECUTION AND PROTECTION OF BITWISE AUTHENTIDATE TECHNOLOGY
4.1 Responsibility for Prosecution and Maintenance
Authentidate shall have the right, and shall use its best efforts based
on the advice of patent counsel, to proceed with all filing, prosecuting, and
maintaining all issued, pending, and future applications and registrations for
the Bitwise Authentidate Technology, including any Improvements, provided,
however, that Licensee shall reasonably assist Authentidate in connection
therewith. Licensee shall bear all costs for the preparation, prosecution,
issuance, and maintenance of all applications and registrations for the Bitwise
Authenticate Technology in the Territory.
4.2 Recordation
If either Party so requests in writing, the Parties will promptly file
and record with the United States Patent and Trademark Office, the United States
Copyright Office, and with any other applicable United States or foreign
governmental office or authority, a copy or memorandum of this License and any
other agreement granting Licensee rights in the Bitwise Intellectual Property
set forth in this License.
4.3 Enforcement against Third Parties
Licensee shall use its best efforts based on the advice of counsel to
prevent third parties from infringing the Bitwise Authentidate Technology in the
Territory, at Licensee's cost. Such efforts include taking legal action if a
settlement cannot be negotiated to stop third party infringement. Such efforts
shall be at Licensee's own expense and Licensee shall receive any compensation
or payment for damages by third party infringers. If either Authentidate or
Licensee obtain knowledge of potential third party infringement in the
Territory, the other Party shall be promptly notified of such potential third
party infringement.
4.4 Infringement Claims against Authentidate and Licensee
The defense of the International Patent shall be a expense to be borne
by International and the Joint Entities. Authentidate shall have control over
the defense of any claim in respect of the International Patent, including
appeals, negotiations and the right to effect a settlement or compromise
thereof, provided that: (i) Authentidate may not settle any claim without the
written consent of Xxxxxxxxx, International and/or any Joint Entity unless
either (A) such settlement releases Xxxxxxxxx, International and/or any Joint
Entity fully or (B) Xxxxxxxxx, International and/or any Joint Entity is not a
party to such claim; and (ii) Authentidate shall promptly provide Xxxxxxxxx with
copies of all pleadings or similar documents relating to any claim.
International and the Joint Entities shall promptly reimburse Authentidate for
the costs of prosecuting or defending any claim with respect to the
International Patents; provided, that in the event International and the Joint
Entities elect to relinquish their License in the country where the claim arose,
Authentidate shall thereafter pay for all costs associated with the defense of
such claim. Claims, including costs not related to the Territory, shall be the
sole responsibility of Authentidate.
5. SUPPORT SERVICES
Authentidate shall provide reasonable technical support and know-how to
Licensee from Authentidate's internal resources in connection with Licensee's
use of the Bitwise Authentidate Technology as the Parties shall mutually agree.
Except as otherwise agreed to by the Parties, such technical support shall be
provided by Authentidate without charge (except for reimbursement of
Authentidate's reasonable out-of-pocket expenses).
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6. WARRANTIES AND REPRESENTATIONS OF THE PARTIES
6.1 Warranties of Authentidate
6.1.1 Organization
Authentidate is a corporation duly organized and validly existing under
the laws of the State of Delaware, and has the corporate power and authority to
enter into and perform this License.
6.1.2 Permits; Approvals
Authentidate, either directly or through its subsidiaries, holds all
licenses, permits, certifications and other authorizations, the absence of which
would have a material adverse effect on its financial condition or business, and
there has been no default or violation under any such authorization and there is
no proceeding or investigation that is pending or, to Authentidate's knowledge,
threatened under which any such authorization may be revoked, terminated or
suspended.
6.1.3 Authorization
All corporate action on the part of Authentidate necessary for the
authorization, execution and delivery of this License and for the performance of
all of its obligations hereunder and thereunder has been taken, and this License
when fully executed and delivered, shall constitute a valid, legally binding and
enforceable obligation of Authentidate.
6.1.4 Governmental and Other Consents
No consent, authorization, license, permit, registration or approval
of, or exemption or other action by, any governmental or public body or
authority, or any other person, is required on the part of Authentidate in
connection with Authentidate's execution, delivery and performance of this
License, or if any such consent is required, Authentidate has satisfied the
applicable requirements.
6.1.5 Effect of License
Authentidate's execution, delivery and performance of this License in
accordance with its terms will not (i) violate the Articles of Incorporation of
Authentidate, or any provision of any law, statute, rule or regulation to which
Authentidate is subject, (ii) violate any judgment, order, writ, injunction or
decree of any court applicable to Authentidate, (iii) have any effect on the
compliance of Authentidate with any applicable licenses, permits or
authorizations which would materially and adversely affect Authentidate, (iv)
result in the breach of, give rise to a right of termination, cancellation or
acceleration of any obligation with respect to (presently or with the passage of
time), or otherwise be in conflict with any term of, or affect the validity or
enforceability of, any agreement or other commitment to which Authentidate is a
party and which would materially and adversely affect Authentidate or (v) result
in the creation of any lien, pledge, mortgage, claim, charge or encumbrance upon
any assets of Authentidate.
6.1.6 Litigation
There are no actions, suits or proceedings pending or, to
Authentidate's knowledge, threatened, against Authentidate before any court or
governmental agency which question Authentidate's right to enter into or perform
this License, or which question the validity of this License.
6.2 Warranties of Licensee
Licensee represents and warrants to Authentidate that the following
statements are true and correct as of the date of this License.
6.2.1 Organization
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Licensee is a corporation duly organized and validly existing under the
laws of Germany, and has the corporate power and authority to enter into and
perform this License.
6.2.2 Permits; Approvals
Licensee, either directly or through its subsidiaries, holds all
licenses, permits, certifications and other authorizations, the absence of which
would have a material adverse effect on its financial condition or business, and
there has been no default or violation under any such authorization and there is
no proceeding or investigation that is pending or, to Licensee's knowledge,
threatened under which any such authorization may be revoked, terminated or
suspended.
6.2.3 Authorization
All corporate action on the part of Licensee necessary for the
authorization, execution and delivery of this License and for the performance of
all of its obligations hereunder and thereunder has been taken, and this License
when fully executed and delivered, shall constitute a valid, legally binding and
enforceable obligation of Licensee.
6.2.4 Governmental and Other Consents
No consent, authorization, license, permit, registration or approval
of, or exemption or other action by, any governmental or public body or
authority, or any other person, is required on the part of Licensee in
connection with Licensee's execution, delivery and performance of this License,
or if any such consent is required, Licensee has satisfied the applicable
requirements.
6.2.5 Effect of License
Licensee's execution, delivery and performance of this License in
accordance with its terms will not (i) violate the [Articles of Incorporation]
of Licensee, or any provision of any law, statute, rule or regulation to which
Licensee is subject, (ii) violate any judgment, order, writ, injunction or
decree of any court applicable to Licensee, (iii) have any effect on the
compliance of Licensee with any applicable licenses, permits or authorizations
which would materially and adversely affect Licensee, (iv) result in the breach
of, give rise to a right of termination, cancellation or acceleration of any
obligation with respect to (presently or with the passage of time), or otherwise
be in conflict with any term of, or affect the validity or enforceability of,
any agreement or other commitment to which Licensee is a party and which would
materially and adversely affect Licensee or (v) result in the creation of any
lien, pledge, mortgage, claim, charge or encumbrance upon any assets of
Licensee.
6.2.6 Litigation
There are no actions, suits or proceedings pending or, to Licensee's
knowledge, threatened, against Licensee before any court or governmental agency
which question Licensee's right to enter into or perform this License or which
question the validity of this License.
7. INDEMNIFICATION
7.1 Mutual Indemnity
This License will constitute the legal, valid, and binding obligation
of the Parties, enforceable against each Party in accordance with its terms.
Each Party agrees to indemnify and hold harmless each other Party to this
License for a breach of the foregoing representations and warranties on such
terms as set forth in this License.
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7.2 Additional Indemnity by Licensee
Except as provided in Sections 4.3 and 4.4, Licensee shall defend,
indemnify, and hold harmless Authenticate and/or Bitwise (the "Indemnified
Parties") and their affiliates, directors, officers, employees and agents,
against and from any cause of action, claim, or suit, including claims for civil
liability, for recovery of any damages, losses or injuries, as well as all costs
and reasonable attorneys' fees relating thereto arising out of any use by
Licensee of the Bitwise Authentidate Technology.
8. LIMITATION OF LIABILITY
EXCEPT FOR A LIABILITY ARISING AS A RESULT OF A CLAIM FOR A BREACH OF,
OR A DEFAULT IN, THIS AGREEMENT OR THE JOINT VENTURE AGREEMENT, IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL INCIDENTAL,
INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER EVEN IF THE OTHER PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF GOODWILL.
9. CONFIDENTIALITY
9.1 The Parties recognize that, in connection with the performance of
this License, each Party (in such capacity, the "DISCLOSING PARTY") may
disclose, or may cause to be disclosed, Confidential Information to the other
Party (the "RECEIVING PARTY"). The Receiving Party agrees (i) not to use any
such Confidential Information for any purpose other than in the performance of
its obligations under this License and (ii) not to disclose any such
Confidential Information, except to its affiliates, employees, consultants,
sub-contractors or representatives who are reasonably required to have the
Confidential Information in connection herewith or as may be required by
applicable law. Any Party required by law to disclose Confidential Information
shall use best efforts to provide notice to the other Party prior to the
disclosure of the Confidential Information and, in any event, shall provide
written notice to the other Party within twenty-four (24) hours of providing
Confidential Information pursuant to applicable law. The Receiving Party agrees
to take all reasonable measures to protect the secrecy and confidentiality of,
and avoid disclosure or unauthorized use of, Confidential Information. This
clause will remain in full force and effect notwithstanding the termination of
this License for a period of two (2) years following the date of termination of
this License.
9.2 Each Party agrees that its obligations under this Section 9 are
necessary and reasonable to protect the other Party and its business, that any
violation of these provisions could cause irreparable injury to the other Party
for which money damages would be inadequate, and that in addition to any other
remedies that may be available in law, the other Party shall be entitled to
request injunctive relief against the threatened breach of the provisions of
this Section 9 without the necessity of proving actual damages. The Parties
agree that the remedies set forth in this Section 9 are in addition to and in no
way preclude any other remedies or actions that may be available under this
License.
10. TERM AND TERMINATION
10.1 Remedies for Breach
10.1.1 Subject to and conditioned upon the provisions of Sections 2.1
and 3.5 hereof, Authentidate may terminate this License if Licensee undertakes
any action which threatens the value, confidentiality, quality, validity or
enforceability of the Bitwise Authentidate Technology, including but not limited
to breach of Section 2, 3, 4, 6 or 9.
10.1.2 Subject to and conditioned upon the provisions of Sections 2.1
and 3.5 hereof, without limiting the foregoing, each Party recognizes that
irreparable injury may result from a breach of any provision of this License not
curable solely by the payment of money damages and that money damages will be
inadequate to fully remedy such injury. Accordingly, in the event of a material
breach or threatened breach of one or more of the provisions of this License,
either Party, in addition to any other remedies available to it, may be entitled
to one or more preliminary or permanent orders (i) restraining and enjoining any
act which would constitute a breach or (ii) compelling performance of any
obligations which, if not performed, would constitute a breach.
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Nothing contained in this Section 10.1.2 is intended to limit the rights of
either Party to seek, or any court to enter, any lawful form of equitable relief
or any available provision of such relief ordered by the court.
11. GENERAL PROVISIONS
11.1 Governing Law: Dispute Resolution
Any judicial proceedings brought by or against any party on any dispute
arising out of this Agreement or any matter related thereto shall be brought in
the state or federal courts of New York City, New York and, by execution and
delivery of this Agreement, each of the parties accepts for itself the exclusive
jurisdiction and venue of the aforesaid courts as trial courts, and irrevocably
agrees to be bound by any judgment rendered thereby in connection with this
Agreement after exhaustion of all appeals taken (or by the appropriate appellate
court if such appellate court renders judgment).
11.2 Notices and Other Communications
Except as otherwise provided herein, all notices, requests, demands,
claims, and or other communications to be given hereunder will be in writing and
will be (as elected by the party giving such notice): (a) personally delivered;
(b) transmitted by postage prepaid registered or certified airmail, return
receipt requested; (c) transmitted by electronic mail via the Internet with
receipt being acknowledged by the recipient by return electronic mail (with a
copy of such transmission concurrently transmitted by postage prepaid registered
or certified airmail, return receipt requested); (d) transmitted by facsimile
(with a copy of such transmission by postage prepaid registered or certified
airmail, return receipt requested); or (e) deposited prepaid with a nationally
recognized overnight courier service. Unless otherwise provided herein, all
notices will be deemed to have been duly given on: (x) the date of receipt (or
if delivery is refused, the date of such refusal) if delivered personally, by
electronic mail, facsimile or by courier; or (y) three (3) days after the date
of posting if transmitted by certified mail. Notice hereunder will be directed
to a party at the address for such party as set forth below. Either party may
change its address for notice purposes hereof on written notice to the other
party pursuant to this Section 11.2.
If to Bitwise: Copy to:
Xxxx X. Xxxxx Xxxxxx X. XxXxxxx, Esq.
Bitwise Designs, Inc. Xxxxxxxxx & XxXxxxx, LLP
0000 Xxxxxxxxxx Xxxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
If to Authentidate: Copy to:
Xxxx X. Xxxxx Xxxxxx X. XxXxxxx, Esq.
Bitwise Designs, Inc. Xxxxxxxxx & XxXxxxx, LLP
0000 Xxxxxxxxxx Xxxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
If to Xxxxxxxxx: Copy to:
Xxx X. Xxxxxxxxxx Weil, Gotshal & Xxxxxx
Windsors New Technologies AGi.G Attn. German Desk
Xxxxxx von Siemens Strasse 0-00 Xxx Xxxxx Xxxxx
X-00000 Rahden Germany Xxxxxx XX0X 0XX, XX
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and
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other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
11.3 Language
This License is in the English language only, which language shall be
controlling in all respects, and all versions of this License in any other
language shall be for accommodation only and shall not be binding upon the
Parties. All communications and notices to be made or given pursuant to this
License shall be in the English language.
11.4 Severability
If any provision in this License shall be found or be held to be invalid or
unenforceable, then the meaning of said provision shall be construed, to the
extent feasible, so as to render the provision enforceable, and if no feasible
interpretation would save such provision, it shall be severed from the remainder
of this License which shall remain in full force and effect unless the severed
provision is essential and material to the rights or benefits received by any
Party. In such event, the Parties shall use best efforts to negotiate, in good
faith, substitute, valid and enforceable provision or agreement which most
nearly effects the Parties' intent in entering into this License.
11.5 References; Subject Headings
Unless otherwise indicated, references to Sections and Schedules are to Sections
of, and Schedules to, this License. The subject headings of the Sections of this
License are included for the purpose of convenience of reference only, and shall
not affect the construction or interpretation of any of its provision.
11.6 Further Assurances
The Parties shall each perform such acts, execute and deliver such instruments
and documents, and do all such other things as may be reasonably necessary to
accomplish the transactions contemplated in this License.
11.7 No Waiver
No waiver of any term or condition of this License shall be valid or binding on
a Party unless the same shall have been mutually assented to in writing by all
Parties. The failure of a Party to enforce at any time any of the provisions of
this License, or the failure to require at any time performance by the other
Party of any of the provisions of this License, shall in no way be construed to
be a present or future waiver of such provisions, nor in any way affect the
ability of a Party to enforce each and every such provision thereafter.
11.8 Entire License Amendments
The terms and conditions contained in this License (including the Schedules)
constitute the entire agreement between the Parties and supersede all previous
agreements and understandings, whether oral or written, between the Parties with
respect to the subject matter of this License. No agreement or understanding
amending this License shall be binding upon any Party unless set forth in a
written document which expressly refers to this License and which is signed and
delivered by duly authorized representatives of each Party.
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11.9 Counterparts
This License may be executed in any number of counterparts, and each counterpart
shall constitute an original instrument, but all such separate counterparts
shall constitute only one and the same instrument.
IN WITNESS WHEREOF, the Parties have caused their respective duly authorized
representatives to execute this License as of the date hereof.
BITWISE DESIGNS, INC.
/s/ Xxxx X. Xxxxx
--------------------------------
By Xxxx X. Xxxxx, President
XXXXXXXXXXXX.XXX, INC.
/s/ Xxxx X. Xxxxx
--------------------------------
By Xxxx X. Xxxxx, President
XXXXXXXXX NEW TECHNOLOGIES AGi.G
/s/ Xxx X. Xxxxxxxxxx
--------------------------------------
By Xxx X. Xxxxxxxxxx,
Vorstand/Member Executive Board
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