EXHIBIT 10.2
DETTO TECHNOLOGIES CORPORATION
TECHNOLOGY LICENSE AGREEMENT
This Technology License Agreement (the "AGREEMENT") is entered into by and
between Detto Technologies Corporation, a Washington corporation located at
14320 NE 21st Street, Suite
11, Bellevue, WA 98007 ("DETTO"), and Alista, Inc.,
a Washington corporation
located at 14320 NE 21st Street, Suite 11, Bellevue, WA
98007 ("ALISTA"), and is
effective as of June 28, 2004(the "EFFECTIVE DATE").
RECITALS
A. Detto is the owner of
certain software that assists computer users from
transferring the contents of
a hard disk from one computer to another.
B. Alista wishes to enter the
business of providing similar software to users in
the Enterprise Market (as
defined below).
C. Detto wishes to provide
Alista , and Alista
wishes to receive from Detto, a
license to use such software
under the terms and conditions set forth herein.
NOW, THEREFORE, in
consideration of the premises and of the mutual covenants
and
agreements herein contained,
the parties hereto do hereby agree as follows:
AGREEMENT
1.
DEFINITIONS.
1.1 "ALISTA MODIFICATIONS" means modifications
to or new versions of the Core
Code or
Detto Modifications
made by or for Alista
under this
Agreement,
including,
without limitation:
(a) changes to Source Code and Object Code
and
documentation
for the Core
Code, (b) for patentable or patented
material,
any improvement
thereon; and (c) for material that is protected
by trade
secret, any new
material derived from such existing trade secret
material,
including new material that may be protected by copyright,
patent
and/or trade secret.
1.2 "CONFIDENTIAL INFORMATION" means all nonpublic information that a
party
designates
as confidential at the time of the disclosure or that, based
on
the nature
of the information or circumstances surrounding its
disclosure,
the
receiving party should in good faith treat as confidential.
Confidential
Information does not include information that the
Receiving
Party can
demonstrate:
(i) was generally
known to the public at the time
disclosed
by the Disclosing
Party; (ii) became generally known to the
public
other than
through a breach of
this Agreement
by the Receiving
Party
after the time of disclosure to the Receiving Party by the
Disclosing
Party; (iii) was in
the Receiving Party's
possession free
of
any
obligation
of confidentiality at the time of disclosure to the
Receiving
Party by the Disclosing Party; (iv) was rightfully received by
the
Receiving Party from a
third party that was free of any obligation of
confidentiality after
disclosure by the Disclosing Party to the Receiving
Party; or
(v) was independently
developed by the
Receiving Party without
reference
to or use of Confidential Information disclosed by the
Disclosing
Party.
1.3 "CORE CODE" means Detto's
software product known as "Intellimover 4.0," as
delivered
by Detto to Alista under this Agreement.
1.4 "DETTO MODIFICATIONS" shall mean modifications made by or for Detto
the
Core Code
or Alista Modifications under this Agreement, including,
without
limitation: (a)
changes to Source Code and Object Code and documentation
for
the Core Code, (b) for patentable or patented material, any
improvement thereon;
and (c) for
material that is protected by trade
secret,
any new material derived from such existing trade secret
material,
including
new material that may
be protected by copyright, patent and/or
trade
secret.
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1.5 "DISCLOSING PARTY" means either Detto or Alista when such party is
disclosing
Confidential
Information
to the other party under this
Agreement.
1.6 "ENTERPRISE MARKET" means the market for the sale of the Enterprise
Version,
as such market is defined in Exhibit A, which may be updated
from
time to
time upon the mutual agreement of the parties.
1.7 "ENTERPRISE VERSION" means a version of the Software
that Alista creates
under this
Agreement,
which version will consist of the Core Code
(or
portions
thereof) and Alista Modifications.
1.8 "EVENT OF DEFAULT" means any
of the following events: (i) a party becomes
insolvent
or is unable to pay its debts as they mature, or makes an
assignment
for the benefit of creditors; (ii) a petition under any
foreign,
state or United
States federal bankruptcy act, receivership
statute,
or the like,
as they now exist,
or as they may be
amended, is
filed by a
party; or (iii) such a petition is filed by any third party,
or
an involuntary petition is not resolved favorably to such party
within
sixty (60)
days after the petition is filed.
1.9 "NON-ENTERPRISE MARKET"
means any market except for the Enterprise Market.
1.10 "OBJECT CODE" means machine-executable computer software code in binary
form.
1.11 "RECEIVING PARTY" means either Detto or Alista when such party is
receiving
Confidential
Information
from the other party under this
Agreement.
1.12 "SOURCE CODE" means computer
software code in
human-readable,
high-level
language
form which, when
compiled or assembled,
becomes the Object Code
of a
software program.
Source Code includes
all other design
documents,
including
without limitation,
logic diagrams, flow
charts, and developer
comments
concerning the relevant software code.
2. DELIVERY OF CORE CODE
AND MODIFICATIONS; UPDATES; ONGOING DISCUSSIONS.
2.1 Delivery of Core Code.
Within [ten (10)] days
after the Effective
Date,
Detto will
deliver to Alista the
Core Code in Source Code and Object Code
formats.
The Core Code will be
deemed accepted by
Alista upon receipt by
Alista.
2.2 Delivery
of Modifications. During the Term, Detto will deliver to
Alista all Detto
Modifications created
during the previous
calendar
quarter within fifteen
(15) days after such Detto Modifications pass
all final tests Detto performs for such code. During the Term, Alista
will deliver
to Detto all
Alista Modifications created during the
previous calendar
quarter within fifteen (15) days after
such Alista
Modifications pass all final tests Alista performs for such
code.
2.3 Updates. During the Term, Detto will update and modify the Core Code
as
necessary
to ensure that the Core Code remains compatible with the
latest
versions
of all commercially
available software
products with which
the
Core Code
is intended
for use, as further
described in Exhibit B. Such
updates
and modifications will be deemed Alista Modifications.
2.4 Ongoing Discussions.
During the Term, and
at least quarterly, the parties
will
meet together to discuss improvements, enhancements, or other
modifications such
party intends to make to the Core Code and future
versions
of the Core Code.
3. ASSIGNMENT / LICENSES
/ OWNERSHIP.
3.1 License of Core Code to
Alista. Detto hereby
grants to Alista,
under all
Detto's intellectual property and proprietary rights, the following
worldwide,
exclusive (including as to Detto, but only
with regard to the
Enterprise
Market), royalty-free, fully-paid-up license to: (1) make,
use,
copy,
modify, create derivative works, (2) publicly
perform or display,
import,
broadcast, transmit, distribute, license, offer to sell, and
sell,
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rent,
lease or lend copies of the Core Code (and derivative works
thereof),
and (3) sublicense to third parties the foregoing rights,
including
the right to
sublicense to further
third parties; provided,
however,
that Detto grants
these rights to Alista
solely for the purpose
of
exercising such rights
in the course of
exploiting the Core
Code and
Alista
Modifications in the Enterprise Market.
3.2 Modifications.
(a)
Ownership
of Detto Modifications. Detto shall be the owner of
and
retain all right,
title, and
interest in and to any
and all Detto
Modifications.
(b)
Ownership of
Alista Modifications.
Alista shall be the owner of and
retain all right,
title, and interest in
and to any and all Alista
Modifications.
(c)
License of Detto
Modifications
to Alista.
Detto hereby
grants to
Alista, under all
Detto's intellectual
property and proprietary
rights, the following
worldwide, exclusive
(including as to Detto,
but only with regard to the Enterprise Market), royalty-free,
fully-paid-up license
to: (1) make, use, copy, modify, create
derivative
works, (2)
publicly perform or display, import,
broadcast, transmit,
distribute, license,
offer to sell, and sell,
rent, lease
or lend copies of the Detto Modifications (and
derivative works
thereof), and (3)
sublicense to third parties the
foregoing rights, including the right to sublicense to further
third
parties; provided, however, that Detto grants these rights to
Alista
solely for the purpose
of exercising
such rights in the
course of
exploiting the Detto Modifications in the Enterprise
Market.
(d)
License of
Alista Modifications
to Detto. Alista hereby grants to
Detto, under all
Alista's intellectual
property and proprietary
rights, the following worldwide, exclusive (including as to
Alista,
but only with regard to the non-Enterprise Market), royalty-free,
fully-paid-up license
to: (1) make, use, copy, modify, create
derivative
works, (2)
publicly perform or display, import,
broadcast, transmit,
distribute, license,
offer to sell, and sell,
rent, lease
or lend copies of the Alista Modifications (and
derivative works
thereof), and (3)
sublicense to third parties the
foregoing rights, including the right to sublicense to further
third
parties; provided, however, that Alista grants these rights to
Detto
solely for the purpose
of exercising
such rights in the
course of
exploiting the Alista Modifications in the non-Enterprise
Market.
3.3 Restrictions on Disclosure
of Source Code.
Notwithstanding
anything else
in this
Section 3, neither party will disclose to a third party,
without
the
prior approval of the other party, the Core Code, Alista
Modifications, or Detto Modifications.
4.
COMPENSATION.
As complete and final
consideration for the
licenses granted hereunder, Alista
will provide compensation to
Detto as set forth in Exhibit C.
5.
CONFIDENTIALITY.
5.1 Use and Disclosure of
Confidential
Information. The
Receiving Party will
not use
any of the Disclosing Party's Confidential Information except to
achieve
the objectives of this
Agreement.
The Receiving
Party will
not
disclose,
give access to, or
distribute
any of the
Disclosing
Party's
Confidential
Information to any
third party, without
the prior
written
consent of
the Disclosing Party.
The Receiving Party will take reasonable
security
precautions
(at least as
protective as the precautions it takes
to
preserve its own Confidential Information of a similar nature)
to keep
the
Disclosing Party's Confidential Information
confidential.
5.2 Feedback. Either party may
from time to time provide suggestions, comments
or
other feedback ("FEEDBACK") to the other party with respect to
Confidential
Information disclosed to it by the other party. Both
parties
agree that
notwithstanding
anything to the
contrary this Agreement, all
Feedback
is and shall be entirely voluntary and shall not, absent
separate
written
agreement,
constitute
Confidential
Information
or create any
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confidentiality
obligation for the receiving party. Each party shall be
free to
use, implement and disclose such Feedback as it sees fit,
entirely
without
obligation of any kind to the other party, with the sole
exception
that the
party receiving
Feedback will not
disclose that the other party
provided
such Feedback except with prior written consent. The parties
will
discuss in
good faith potential
cooperation
in the event either of
them
reasonably
believes that it may be possible to protect intellectual
property
rights (e.g., patent
rights) in any Feedback arising under this
Agreement,
and such discussions will include a good faith determination
of
how to
formalize ownership
and license rights in such Feedback consistent
with the
intent of this paragraph.
5.3 No Implied Rights. By
disclosing Confidential Information to the Receiving
Party,
the Disclosing
Party does not grant
any express or implied rights
to the
Receiving Party to or
under any of the Disclosing Party's (or any
third
party's) patents, copyrights, or trademarks.
5.4 Independent Development. The parties acknow
