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EXHIBIT 10.10
TECHNOLOGY AGREEMENT
This Agreement is entered as of August 18, 1998 between AboveNet
Communications Inc. ("Company"), and Xxxxx Xxxx, an individual ("Developer") to
clarify the existing ownership and license rights of AboveNet in the Technology,
Intellectual Property, EtherValve, and MRTG (as defined herein) and merely
restates the true understanding of the parties.
1. Assignment. Developer has assigned and hereby assigns to Company
exclusively throughout the world all right, title and interest (whether or not
now existing) in (i) the Technology, as defined in Exhibit A attached hereto,
(ii) all precursors, portions and work in progress with respect thereto and all
inventions, works of authorship, mask works, technology, information, know-how,
materials and tools relating thereto or to the development, support or
maintenance thereof and (iii) all copyrights, patent rights, trade secret
rights, trademark rights, mask works rights and other intellectual property
rights and all business, contract rights and goodwill in, incorporated or
embodied in, used to develop, or related to any of the foregoing (collectively
"Intellectual Property").
2. License. Developer has granted and hereby grants to Company
perpetual, irrevocable, royalty-free worldwide licenses (with the right to grant
sublicenses) to use, copy, distribute, modify, and fully exploit the products
and related technologies known as EtherValve and MRTG, as defined in Exhibit A
attached hereto. The foregoing license grants are nonexclusive for MRTG and
exclusive for EtherValve, except that such exclusivity is subject only to the
non-exclusive license granted by Developer to Aponet for EtherValve prior to the
Effective Date.
3. Consideration. The Company agrees to issue to Developer options for
405,000 shares of common stock of the Company on the date of this Agreement
pursuant to the provisions of a Stock Purchase Agreement of even date herewith
between the Company and Developer. Such shares shall be the only consideration
required of the Company with respect to the subject matter of this Agreement
4. Further Assurances; Moral Rights; Competition; Marketing
4.1 Developer agrees to assist Company in every proper way to
evidence, record and perfect the assignment and licenses hereunder and to apply
for and obtain recordation of and from time to time enforce, maintain, and
defend the assigned and licensed rights. If Company is unable for any reason
whatsoever to secure the Developer's signature to any document it is entitled to
hereunder, Developer hereby irrevocably designates and appoints Company and its
duly authorized officers and agents, as its agents and attorneys-in-fact with
full power of substitution to act for and on its behalf and instead of
Developer, to execute and file any such document or documents and to do all
other lawfully permitted acts to further the purposes of the foregoing with the
same legal force and effect as if executed by Developer.
4.2 To the extent allowed by law, the assignment and licenses
hereunder include all rights of paternity, integrity, disclosure and withdrawal
and any other rights
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that may be known as or referred to as "moral rights," "artist's rights," "droit
moral," or the like (collectively "Moral Rights"). To the extent Developer
retains any such Moral Rights under applicable law, Developer hereby agrees to
waive such Moral Rights and will confirm such waivers from time to time as
requested by Company.
5. Warranty. Developer represents and warrants to Company that
Developer: (i) has the right to make the assignments and licenses made hereunder
and the full power and authority to enter into this Agreement, (ii) has not
assigned, transferred, licensed, pledged or otherwise encumbered any
Intellectual Property, EtherValve (except as expressly disclosed in Section 2 of
this Agreement) or the Technology or agreed to do so, (iii) has not assigned,
transferred, pledged or otherwise encumbered MRTG or agreed to do so, (iv) is
not aware of any violation, infringement or misappropriation of any third
party's rights (or any claim thereof) by the Intellectual Property, MRTG,
EtherValve or the Technology, and (v) does not own any right, title or interest
in or to any of the following marks: AboveNet, APS, ASAP, As-UR-Here,
EtherValve, ISPCondo, ISX, WebCondo, Cabriolet, or Remote-Hand-Services.
6. Miscellaneous. No failure to exercise, and no delay in exercising, on
the part of either party, any privilege, any power or any rights hereunder will
operate as a waiver thereof. If any provision of this Agreement shall be
adjudged by any court of competent jurisdiction to be unenforceable or invalid,
that provision shall be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect and
enforceable. This Agreement shall be deemed to have been made in, and shall be
construed pursuant to the laws of the State of California and the United States
without regard to conflicts of laws provisions thereof. Any waivers or
amendments shall be effective only if made in writing and signed by a
representative of the respective parties authorized to bind the parties. Both
parties agree that with the exception of the May 19, 1998 employment agreement
between Developer and Company ("Employment Agreement"), this Agreement is the
complete and exclusive statement of the mutual understanding of the parties and
supersedes and cancels all previous written and oral agreements and
communications relating to the subject matter of this Agreement. In the event
that any term of the Employment Agreement and this Agreement is construed to be
inconsistent, this Agreement shall control.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first indicated above.
COMPANY DEVELOPER
By: By:
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Printed: Printed:
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Title: Address:
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EXHIBIT A
DEFINITIONS
o The"Technology" shall mean all right, title and interest (including
copyrights, patent rights, trade secret rights, mask work rights and all
other rights throughout the world) relating to any and all inventions
(whether or not patentable), works of authorship, mask works, designs,
know-how, ideas and information relating to customer monitoring and
notification software called Automated Pro-Active Services or APS and/or
the customer monitoring software called Asymmetric Allocation of Packets
or ASAP.
o "EtherValve" shall mean all right, title and interest (including
copyrights, patent rights, trade secret rights, mask work rights
and all other rights throughout the world) relating to any and
all inventions (whether or not patentable), works of authorship,
mask works, designs, know-how, ideas and information relating to
bandwidth management software known as EtherValve.
o "MRTG" shall mean all right, title and interest (including copyrights,
patent rights, trade secret rights, mask work rights and all
other rights throughout the world) relating to any and all
inventions (whether or not patentable), works of authorship,
mask works, designs, know-how, ideas and information relating to
customer monitoring software known as Multi Router Traffic
Grapher or MRTG.
