EXHIBIT 10.3
FIRST MODIFICATION OF AGREEMENT FOR TECHNOLOGY
TRANSFER, MANUFACTURE, DISTRIBUTION AND AFFECTING
PATENT, TRADEMARK AND COPYRIGHTS
- DIGIDEAL CORPORATION AND PDS FINANCIAL -
1. PARTIES
1.1 This is a modification, effective as of August 12, 1999, of an
Agreement made by and between:
(a) DIGIDEAL CORPORATION, a Nevada corporation, whose business
address is 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxx, XX 00000, (hereinafter
referred to as "DIGIDEAL"); and,
(b) PDS FINANCIAL CORPORATION, a corporation organized under
the laws of Minnesota, whose address is 0000 XxXxxx Xxxxx, Xxx Xxxxx,
XX 00000-0000, (hereinafter referred to as "PDS FINANCIAL").
2. BACKGROUND
2.1 This modification applies to the agreement entitled "Agreement for
Technology Transfer, Manufacture, Distribution and Affecting Patent, Trademark
and Copyrights" which was executed by the parties on June 16, 1999. This shall
be referred to herein as the "Original Agreement". Use of the term Original
Agreement does not render ineffective any prior modifications made by the
parties in compliance with part 66, if any, or other applicable provisions
governing modifications thereof.
2.2 Part 57 of the Original Agreement specified the terms agreed to
concerning suits by third parties against either of the parties hereto. The
parties have come to further agreement concerning the desired handling of any
patent, trademark or copyright infringement suits which may be made by third
parties against either party in connection with the Designated Product,
Designated Trademarks, The Copyright Works, or other proprietary right licensed
or conveyed under the terms of the Original Agreement.
2.3 All terms of the Original Agreement shall apply to this
modification except as specifically provided for herein.
2.4 All of the other terms and conditions of the Original Agreement are
incorporated into this modification. Except for the modifications set forth
herein, nothing in this modification shall be construed as conflicting with or
circumventing any terms and conditions of the Original Agreement.
3. MODIFICATION OF PART 57 OF ORIGINAL AGREEMENT
3.1 Notwithstanding the provision of part 57 of the Original Agreement,
the parties hereto hereby modify such provisions and agree that if any third
party takes legal action or otherwise makes or asserts a claim against either of
the parties to this agreement, and such action, assertion or claim is based upon
infringement of any patent, trademark or copyright associated with the
Designated Product, Designated Trademarks, The Copyright
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Works, or other proprietary right licensed or conveyed under the terms of the
Original Agreement; then the following provisions shall apply. For
convenience, any such action, assertion or claim shall be referred to below
as a "third party infringement claim".
3.2 The parties agree to cooperate in defending, settling or otherwise
resolving any third party infringement claim.
3.3 All costs of defending against any third party infringement claim
shall be equally divided between the parties.
3.4 Costs of defending against any third party infringement claim shall
include monetary outlays for court costs, lawyers fees, investigation costs,
costs of depositions, copy costs incurred in connection with a lawsuit, and
other monetary outlay costs incurred because of actions taken in connection with
the third party infringement claim.
3.5 Costs of defending against any third party infringement claim shall
not include labor or employment costs and associated taxes for any employee of
either party unless there is specific further agreement that such employee costs
shall be shared under the terms of this modification and the Original Agreement.
Also excluded are costs of consultants normally employed by either party in
connection with the party's regular business, unless agreed by the parties or
unless the consultant's fees are specifically charged in connection with
services provided in defending against the third party infringement claim.
Management consultants shall be considered the same as employees for purposes of
determining whether their service fees are considered costs of defending against
any third party claims.
3.6 Any recovery to either party resulting from any third party
infringement claim, such as a favorable ruling upon a counterclaim, shall first
be used to pay unpaid costs incurred by both parties in connection with the
third party infringement claim. Thereafter the parties shall be reimbursed to
the extent that the costs of defending have not been borne equally. Thereafter
the recovery shall be divided equally or in a manner sufficient to provide equal
treatment of the parties with respect to costs and recovery in connection with
the third party infringement claim.
3.7 The provisions of this modification agreement shall not apply to
counterclaims filed by either party which are not within the definition or
subject matter of a third party infringement claim as defined hereinabove,
unless there is agreement in writing between the parties that such a
counterclaim is governed by the provisions of this modification.
3.8 If any provision of the Original Agreement is inconsistent with the
terms of this modification, then the provision contained herein shall govern.
3.9 Each party shall give the other prompt notice in writing of any
claim of infringement made known to it or the threat of any such claim.
4. EXECUTION BY DIGIDEAL - DIGIDEAL CORPORATION
Date: 9/2/99 By: /s/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx, CEO
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State of )
) ss
County of )
I certify that I know or have satisfactory evidence that Xxxxxxx
X. Xxxx signed this instrument, and upon oath acknowledged that he had authority
to act in behalf of DIGIDEAL Corporation and further acknowledged this
instrument to be the free and voluntary act of such party for the uses and
purposes mentioned in this instrument.
Dated:
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Notary Public
Residing at
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[SEAL] My appointment expires:
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5. EXECUTION BY PDS FINANCIAL
Date: 9/1/99 By: /s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
President
PDS Financial
State of Nevada )
) ss
County of Xxxxx )
I certify that I know or have satisfactory evidence that Xxxxx
Xxxxxx signed this instrument, and upon oath acknowledged that he had authority
to act in behalf of PDS FINANCIAL and further acknowledged this instrument to be
the free and voluntary act of such party for the uses and purposes mentioned in
this instrument.
Dated:
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Notary Public
Residing at
-----------------------
[SEAL] My appointment expires:
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