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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; and
(iii) assista
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