Exhibit 10.6 Source Code
Agreement
Source Code License
Agreement
The Source Code License Agreement (the
“Agreement”), between eGene, Inc., a Nevada corporation
located at 17841 Fitch, Irvine, CA 92614 (“EGENE”) and
SciBridge Software, located at 10 Woodbridge Ct, Trabuco Canyon, CA
92679 (“SCIBRIDGE”), is entered into this April 12,
2007 (the “Effective Date”).
WHEREAS, SCIBRIDGE is the owner of the
source code for the Biocalculator Software consisting of
BioCalculator specific components (“BioCalculator
Components”) and the core components (“Core
Components”) , as described on Exhibit A attached hereto.
This software is currently used by EGENE to
perform instrument control, data acquisition and data analysis.
The source code for the BioCalculator Components and the Core
Components shall be referred to herein collectively as the
“SOURCE”.
WHEREAS, SCIBRIDGE wishes to license the
source code for the Core Components and the BioCalculator
Components to EGENE according to the terms and
conditions set forth herein;
WHEREAS, EGENE in exchange for the
license to use the SOURCE as set forth herein agrees to pay
the fee set forth below;
NOW THEREFORE, in consideration of the
premises and the mutual covenants and agreements contained herein,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree to the following terms and conditions.
1. Grant
1.1 Subject to the terms and conditions of this
Agreement, SCIBRIDGE hereby grants to EGENE an exclusive
, worldwide , perpetual, irrevocable, fully-paid up,
royalty-free license to the source code of the BioCalculator
Components to: (i) modify, duplicate and create derivative works of
the BIOCALCULATOR COMPONENTS ; (ii) use, reproduce, copy and
store the BIOCALCULATOR COMPONENTS; and (iii) sublicense the
foregoing rights to any third party. In order to establish
exclusivity to the BIOCALCULATOR COMPONENTS for EGENE, SCIBRIDGE
agrees that it shall not grant any other license to the
BIOCALCULATOR COMPONENTS to any third party nor shall it use the
BIOCALCULATOR COMPONENTS internally for any purpose at
all.
1.2 Subject to the terms and conditions of this
Agreement, SCIBRIDGE hereby grants to EGENE a non- exclusive
, worldwide , perpetual , irrevocable, fully-paid up,
royalty-free license to the source code of the Core Components to:
(i) modify, duplicate and create derivative works of the CORE
COMPONENTS ;
(ii) use, reproduce, copy and store the
CORE COMPONENTS; and (iii) sublicense the foregoing rights in
object form to any third party, provided, however, that EGENE shall
have the limited right to sublicense the source code of the CORE
COMPONENTS to a third party vendor providing development services
to EGENE related to the BioCalculator Software solely for the
purpose of providing such services and subject to the
confidentiality restrictions set forth below. SCIBRIDGE may
terminate EGENE’s license rights to use the CORE COMPONENTS
under this Section 1.2 upon thirty (30) days prior written notice
to EGENE in the event that the EGENE materially breaches the
provisions of this Section 1.2 with respect to the restrictions on
use of the CORE COMPONENTS and fails to cure such breach within the
thirty (30) day notice period.
1.3 SCIBRIDGE shall deliver to EGENE, the SOURCE
within three (3) days after SCIBRIDGE’s receipt of the
cash payment from EGENE per Section 4 of this Agreement .
SCIBRIDGE shall deliver the SOURCE in the following format
and accompanied by the following documentation: software
written in the original programming languages, such as C++ and
Java, including all comments and procedural code and required
libraries, such as job control language statements and listings of
compilers and development tools, in a form intelligible to trained
programmers and capable of being translated into object code for
operation on computer equipment through assembly or compiling, and
accompanied by documentation, including, flow charts, schematics,
statements of principles of operations, and architecture standards,
describing the data flows, data structures, and control logic of
the software in sufficient detail to enable a trained programmer
through study of such documentation to maintain and/or modify the
software without undue experimentation .
2. Maintenance and Support
EGENE agrees that SCIBRIDGE shall not be
required to maintain and support the SOURCE in any way. SCIBRIDGE
will, upon EGENE’s request, provide professional services to
maintain and support the SOURCE and/or modify or further develop
the SOURCE on a time and materials basis at a mutually agreed upon
commercially reasonable rate.
3. Warranties
3.1 Each party warrants that it has a right to enter
into this Agreement. SCIBRIDGE further warrants that (i) it has the
right to grant the licenses set forth in this Agreement, and
(ii) the CORE COMPONENTS does not infringe , violate or
misappropriate any third party’s rights, including
without limitation intellectual property rights.
3.2 EXCEPT FOR THE WARRANTIES SET FORTH IN
SECTION 3.1 ABOVE, THE SOURCE IS LICENSED “AS IS”
WITHOUT WARRANTY AS TO ITS PERFORMANCE, AND SCIBRIDGE MAKES NO
WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT
LIMITED
TO IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY
BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, EVEN IF EITHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
3.3 Each party agrees to indemnify, defend, and hold harmless the
other party against any liabilities, damages, losses, and costs
(including reasonable attorneys’ fees), arising from third
party claims in connection with the breach of any representations,
warranties or covenants herein. The indemnified party agrees
to provide the indemnifying party with (i) prompt written
notice of the existence of any claim for which it seeks
indemnification hereunder , (ii) sole control over the defense
or settlement of such claim;
