EXHIBIT 10(aq)
SECOND OEM AMENDMENT
This Second Amendment ("Amendment") is made and entered into as of the 25th day
of October 2000 by and between Artifex Software Inc., with its principal place
of business located at San Rafael, California ("Supplier"), and ITEC, with its
principal place of business located at San Diego, California ("Distributor").
The text of this Amendment shall consist of the text of the existing OEM
Agreement of July 1, 1999 and the First OEM Amendment of September 7, 1999
between Artifex Software Inc. "Supplier" and ITEC "Distributor", with the
following exceptions:
Replace Exhibit D in its entirety with the following:
EXHIBIT D
D-1. Right to Sublicense.
Subject to Distributor's payment obligations in Section 3 of this Agreement,
Distributor may sublicense its right to publish and distribute copies of the
Product incorporating the Software set forth in Section 1(a)(iii), provided that
any agreement granting such rights shall contain provisions substantially the
same as those set forth in Sections 1(c), 1(d), 1(e), 7, 9.1, 10, 11, 12, and
18.4 hereof, and provided, further, that no such sublicensee shall have any
right to modify the Software or sublicense (other than an end-user license of
the unmodified Software with terms consistent with those required by this
Paragraph) the rights granted to it by Distributor. Supplier shall have no
warranty or other obligations to any such sublicensee, and Distributor shall
indemnify and hold Supplier harmless from and against any claim arising out of
any such sublicense, such sublicensee's actions, or any warranties made by or on
behalf of Distributor to such sublicensee. With respect to sublicensees, the
Software is provided "AS IS" without warranty of any kind.
D-2. Marking of Copies.
Subject to Distributor's payment obligations hereunder, no identification of
individual copies is required under this Agreement.
D-3. Fees, Payments, Reports, and Records.
D-3.1 Fees.
(a) License Fee. Distributor shall pay Supplier a one-time license fee of One
million, two hundred thousand (1,200,000) shares of Distributor's common stock
or Five hundred thousand dollars ($500,000). The number of shares of
Distributor's common stock to be delivered hereunder shall be adjusted for any
splits, stock dividends paid, etc. from the effective date of this Amendment to
the date that such common stock is actually delivered to Supplier. Supplier
shall have the right to have its shares delivered hereunder registered, at the
expense of Distributor, with any appropriate registration statement filed by
Distributor. Distributor agrees to file with the Securities and Exchange
Commission a registration statement including the shares
delivered hereunder within no more than One hundred eighty (180) days from the
effective date of this Amendment. Upon Supplier's receipt of the license fee,
Distributor's license hereunder shall become fully paid-up and royalty free.
Such fee is exclusive of, and Distributor shall pay for, shipping, any sales,
use, property, value added or similar taxes, federal, state, or local, or other
charges imposed on or with respect to the Software or its delivery, use or
possession, except taxes based upon the net income of Supplier.
(b) Prepaid License Fees. No prepaid license fees are due under this Agreement.
(c) Major Version Fee. There is no Major Version fee due under this Agreement.
(d) Continued Support Fee. For each year of Continued Support, Distributor shall
pay Supplier the amount of Twenty thousand dollars ($20,000), to be paid
quarterly as provided in Paragraph D-3.2(a), below.
(e) Technology Access Fee. There is no technology access fee due under this
Agreement.
D-3.2 Payment.
(a) Fee Due Dates. Payment under section D-3.1(a) shall be due and payable on
the effective date of this Amendment Payment under section D-3.1(d) shall be due
on the first day of the quarter for which Continued Support is to be provided.
(b) Invoices; Prompt Payment. Supplier shall invoice Distributor as the fees set
forth in section D-3.1(d) becomes due. Distributor shall pay within thirty (30)
days of the invoice's date unless Supplier agrees to other terms in advance in
writing.
(c) Payment Currency and Instrument. All payments hereunder shall be in U.S.
dollars, by check drawn on a U.S. bank.
D-3.3. Reports.
This Agreement does not require Distributor to provide Supplier with any
reports.
D-3.4. Records.
This Agreement does not require Distributor to keep any specific records.
All other terms and conditions of the existing OEM Agreement shall apply to the
licensing of Ghostscript (the Software).
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be
signed and delivered by its duly authorized officer or representative as of the
date first set forth above.
SUPPLIER DISTRIBUTOR
Artifex Software Inc. Imaging Technologies Corporation
By:___________________ By:__________________________
Name: Xxxxx Xxxxx Name: Xxxxx Xxxxx
Title: President Title: CEO
Date:_________________ Date:_________________
