TECHNOLOGY LICENSE AGREEMENT

5.1           Indemnification of LEAGUE NOW.  PURE MOTION agrees, at its expense, to defend and indemnify LEAGUE NOW from, and to pay any judgment for, any suit, claim or proceeding against LEAGUE NOW alleging that any portion of the Technology infringes any patents or copyrights of a third party issued in the United States, provided that PURE MOTION is promptly notified in writing of any claim, given all reasonable assistance required, and permitted to direct the defense.  Either Party will have the right to engage separate counsel, at its own expense, to monitor and advise the other Party about the status and progress of the defense.  PURE MOTION will have no liability for settlements or costs incurred without its consent.  For purposes of this Section, LEAGUE NOW waives any conflict of interest which may prohibit PURE MOTION from retaining one law firm to represent both LEAGUE NOW and PURE MOTION in any matter in which indemnification by PURE MOTION is required.

5.2           Indemnification of PURE MOTION.  LEAGUE NOW agrees, at its expense, to defend and indemnify PURE MOTION from, and to pay any judgment for, any suit, claim or proceeding against PURE MOTION alleging injury or damage based on any representation by or on behalf of LEAGUE NOW, any acts or omissions of LEAGUE NOW or any of its respective agents, representatives or employees, or any unauthorized use of the Technology by or on behalf of LEAGUE NOW, provided that LEAGUE NOW is promptly notified of any claim.  Either Party will have the right to engage separate counsel, at its own expense, to monitor and advise the other Party about the status and progress of the defense.  LEAGUE NOW will have no liability for settlements or costs incurred without its consent.

7.1           Ownership Rights.  PURE MOTION owns all title and all proprietary rights, including without limitation, copyrights, patents and trade secrets rights, the Technology, and any derivations thereof in any form free and clear of claims, and subject to the terms of this License.

(i)           Observe complete confidentiality with regard to the confidential information and will protect it using at least the same degree of care it uses to protect its own proprietary and confidential information, but in no event less care than a reasonably prudent business person would take in a like or similar situation;

(ii)           Not disclose or permit any third person or entity access to the confidential information without PURE MOTION’s prior written consent; and

(iii)           Ensure that employees of LEAGUE NOW who receive access to any confidential information are advised of the confidential and proprietary nature thereof and of their obligation to maintain its secrecy.

8.3           Financial Audit.  Upon Five (5) days prior written notice to LEAGUE NOW, PURE MOTION may audit the books and records of LEAGUE NOW to determine the sufficiency of LEAGUE NOW’s payments hereunder.  Any such audit will take place during normal business hours at LEAGUE NOW’s principal business location and will be conducted in a manner that does not unreasonably disrupt the business operations of LEAGUE NOW.  PURE MOTION will bear the expense of any such audit unless such audit reveals that the amount paid by LEAGUE NOW hereunder with respect to any calendar quarter will be more than four percent (4%) less than the amount that should have been paid by LEAGUE NOW, in which event (i) the cost of such audit will be borne by LEAGUE NOW, and (ii) LEAGUE NOW will immediately pay the deficiency plus a penalty equal to Twenty-five percent (25%) of the deficiency.

9.1           Notices.  All notices or other communications required hereunder will be in writing and delivered first by facsimile followed by regular mail, and will be deemed delivered upon receipt of a telefax confirmation printed by the sender’s telefax machine. All notices will be sent to:

9.2           Integration.  This Agreement constitutes the entire understanding and agreement between PURE MOTION and LEAGUE NOW with respect to the transactions contemplated herein and supersede any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof, all of which are merged herein.  This Agreement will not be modified, amended or in any way altered except by an agreement in writing signed by authorized representatives of the Party to be bound.

9.3           Choice of Law and Forum.  This Agreement will be construed and enforced in accordance with the laws of the State of California.  Any action or proceeding brought by PURE MOTION or LEAGUE NOW against the other arising out of or related to this Agreement will be brought in a State or Federal court of competent jurisdiction located in the County of Orange, State of California, and LEAGUE NOW hereby submits to the in personam jurisdiction of such courts for purposes of any such action or proceeding.

9.4           No Joint Venture.  Nothing contained herein will be deemed to create a joint venture or partnership or agency relationship between PURE MOTION and LEAGUE NOW.  Neither Party will have the right or authority to, and each Party will not, assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party or to bind the other Party in any manner.

9.5           Severability.  If any provision hereof is found invalid or unenforceable pursuant to a judicial decree or decision, the remainder of this Agreement will remain valid and enforceable according to its terms.  Without limiting the foregoing, it is expressly understood and agreed that each and every provision of this Agreement which provides for a limitation of liability or damages, disclaimer of warranties, indemnification of a Party or exclusion or limitation of damages or any other remedies is intended by the Parties to be severable and independent of any other provision and to be enforced as such.  Further, it is expressly understood and agreed that if any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages or other remedies set forth herein will remain in effect.  Moreover, where any provision herein has been adjudicated to exceed the maximum force allowable by law, the court will interpret such provision as providing the maximum allowable protection provided by law.

9.6           Attorneys’ Fees.  The prevailing Party in any action or proceeding between PURE MOTION and LEAGUE NOW arising out of or related to this Agreement will be entitled to recover from the other Party all of its costs and expenses including, without limitation, its actual attorneys’ fees and costs incurred in connection with such action, including any appeal of such action.

9.7           Nonwaiver. PURE MOTION and LEAGUE NOW agree that no failure to exercise, and no delay in exercising any right, power, or privilege under this Agreement on the part of either Party shall operate as a waiver of any right, power, or privilege hereunder.  PURE MOTION and LEAGUE NOW further agree that no single or partial of any right, power, or privilege under this Agreement shall preclude further exercise thereof.

 

 

9.8           Amendments.  PURE MOTION and LEAGUE NOW agree that this Agreement shall be modified only by a written agreement duly executed by persons authorized to execute agreements on their behalf.

9.9           Authority.  Each person executing this Agreement on behalf of a Party has the authority of the entity to execute this Agreement.

9.10           Time Is Of The Essence.  Both Parties agree that time is of the essence with respect to each and every term and provision set forth in this Agreement.

9.11           Recitals Incorporated.  The foregoing recitals are incorporated herein by reference and made a part of this Agreement.