FIRST AMENDMENT TO TECHNOLOGY LICENSING AGREEMENT
This First Amendment to Technology Licensing Agreement (the "Amendment") is
entered into as of April 1, 1999 (the "Effective Date") by and among GO HIP,
INC., a California corporation ("Licensor") and PLUS NET, INC., a California
corporation ("Licensee").
RECITALS
A. On or about February 3, 1999, the parties executed that certain
Technology Licensing Agreement (the "Agreement") for the license of certain
technology of Licensor to Licensee.
B. The parties desire to amend the Agreement and provide for certain
other matters as set forth herein.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency is hereby acknowledged, the parties agree as follows:
1. Paragraph A of Section 1 of the Agreement "LICENSE" is hereby amended to
delete Paragraph A and replace it with the following:
Licensor hereby grants to Licensee a worldwide, perpetual, irrevocable, fully
paid-up, royalty free license, with the right to sublicense and authorize the
granting of sublicenses, to make, have made, use, reproduce, import, copy,
modify, offer to sell, sell, lease and otherwise distribute and display the
Licensed Technologies described in Schedule "A" and Schedule "B" attached hereto
and incorporated herein by reference and all Intellectual Property Rights with
respect thereto (the "Technology").
2. Paragraph B of Section 1 of the Agreement "LICENSE" is hereby deleted.
3. Paragraph B of Section 4 of the Agreement "LICENSEE'S OBLIGATIONS AND
REPRESENTATIONS" is hereby deleted.
4. Paragraph C of Section 4 of the Agreement "LICENSEE'S OBLIGATIONS AND
REPRESENTATIONS" is hereby deleted.
5. Section 5 of the Agreement "CONFIDENTIALITY" is hereby deleted.
6. Section 8 of the Agreement "OWNERSHIP" is hereby deleted and replaced
with the following:
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Nothing in this Amendment or the Agreement shall limit or prevent Licensor from
exploiting, using, modifying, developing or licensing the source code of the
Technology retained by Licensor. Licensor shall own all right title and interest
in and to the source code of the Technology retained by Licensor and all
intellectual property rights therein. Licensor shall also own all right, title
and interest in any improvement, modification or enhancement of the version of
such source code or the Technology retained by Licensor and all intellectual
property rights therein. Licensor shall have full right to transfer all of its
right, title and interest in the source code or Technology retained by Licensor
and all intellectual property rights therein. Licensor may continue to license
the source code of the Technology retained by Licensor to others in its absolute
discretion.
Licensor hereby transfers and Licensee shall own all right, title, and interest
in and to the version of the source code of the Technology delivered to
Licensee. Licensee shall also own all right, title and interest in any
improvement, modification or enhancement of the Technology or version of the
source code delivered to Licensee and all intellectual property rights therein
and Licensor hereby irrevocably transfers, conveys and assigns to Licensee all
of its right, title, and interest therein. Licensor shall execute such
documents, render such assistance, and take such other action as Licensee may
reasonably request, at Licensee's expense, to apply for, register, perfect,
confirm, and protect Licensee's rights as set forth in this paragraph. Licensor
hereby waives any and all moral rights, including without limitation any right
to identification of authorship or limitation on subsequent modification that
Licensor (or its employees, agents or consultants) has or may have in the
Technology as modified, improved or enhanced or any derivatives thereof created
or developed by Licensee. Licensee shall have full right to transfer all of its
right, title and interest in this Agreement, the Technology, source code owned
by Licensee and all intellectual property rights therein. Licensee may license
the version of the source code of the Technology delivered to Licensee to others
in its absolute discretion.
Licensor agrees that if Licensee is unable because of Licensor's unavailability,
dissolution or incapacity, or for any other reason, to secure Licensor's
signature to apply for or to pursue any application for any United States or
foreign patents or mask work or copyright registrations covering the inventions
assigned to Licensee above, then Licensor hereby irrevocably designates and
appoints Licensee and its duly authorized successors, officers and agents as
Licensor's agent and attorney in fact, to act for and in Licensor's behalf and
stead to execute and file any such applications and to do all other lawfully
permitted acts to further the prosecution and issuance of patents, copyright and
mask work registrations thereon with the same legal force and effect as if
executed by Licensor.
Neither party to this Agreement or the Amendment shall be required to account to
or share with the other party any royalties, license fees, sales revenue or any
other revenue of any nature earned, received or otherwise derived from a party's
commercial exploitation of the source code owned by him and each party hereby
waives any right to an accounting of profits from the other party.
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7. Section 11 of the Agreement "POST TERMINATION RIGHTS" is hereby deleted
and replaced with the following:
Upon the termination of this Agreement, Licensee shall return Licensor's
property licensed hereunder, but Licensee shall have the right to retain all
technology owned by Licensee as set forth in this Agreement.
8. Paragraph B of Section 12 of the Agreement "INDEMNITY" is hereby deleted
and replaced with the following:
Licensor shall defend, indemnify and hold Licensee harmless from any and all
damages, liabilities, costs and expenses (including but not limited to
reasonable attorneys' fees) incurred by Licensee as a result of (i) any breach
of this Agreement; or (ii) any claim that the Technology or, any part thereof,
infringes or misappropriates any Intellectual Property Right of a third party.
As a condition to such defense and indemnification, Licensee will provide
Licensor with prompt written notice of the claim and permit Licensor to control
the defense, settlement, adjustment or compromise of any such claim. Licensee
may employ counsel at its own expense to assist it with respect to any such
claim; provided, however, that if such counsel is necessary because of a
conflict of interest of either Licensor or its counsel or because Licensor does
not assume control, Licensor will bear the expense of such counsel. Licensee
shall have no authority to settle any claim on behalf of Licensor.
9. Except as amended hereby, all terms and conditions of the Agreement shall
continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment to Asset
Purchase Agreement as of the date first set forth above.
LICENSEE: PLUS NET, INC.
a California Corporation
By: /s/ Xxxxx X. Xxxxxxxx
Its: President
LICENSOR: GO HIP, INC.
a California Corporation
By:_/s/ Xxxxx Xxxx
Its: President
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