EXHIBIT 10.23
ASSIGNMENT AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, V-Tek Systems Corporation ("Assignor"), a California
corporation with its principal place of business at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇, hereby assigns, transfers and conveys to The First
Marblehead Corporation, a Delaware corporation having a principal place of
business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ("Company"), all of
Assignor's right, title and interest in and to all work, deliverables,
materials, software (object and source code), computer programs, manuals,
improvements, flow charts, specifications, designs, processes, and the tangible
embodiments of same, made or conceived by Assignor in connection with and during
the performance of services under all prior and present engagements with the
Company, including but not limited to the development of the GATE Universal
System, and the development of a web-based on-line loan claiming process and a
school converter process (collectively, the "Work" or "Works"), other than
Developer's Tools, as defined below.
"Developer's Tools" shall mean Assignor's pre-existing, proprietary reusable
software code (including derivatives thereof) that is installed or incorporated
in or as part of the Work. "Developer's Tools" also include the enhanced general
knowledge, skills and experience developed by Assignor as a result of Assignor's
performance of services under its engagements with the Company. Assignor hereby
grants to the Company a non-exclusive, fully paid-up, perpetual right and
license to use, copy, modify, display, and make derivative works from the
Developer's Tools for the purposes of using, operating, supporting and/or
maintaining the Work. Nothing herein, however, shall be deemed a transfer of
ownership of the Developer's Tools to the Company.
"Intellectual Property Rights" shall mean all patents and patent applications,
trade marks (whether registered or unregistered and including any goodwill
acquired in such trade marks), service marks, trade names, business names,
internet domain names, e-mail address names, copyrights (including rights in
computer software), computer source code, computer object code, moral rights,
database rights, design rights, rights in know-how, rights in confidential
information, rights in inventions (whether patentable or not), trade secrets and
all other proprietary rights therein or relating thereto (whether registered or
unregistered and including any form of application for any of the foregoing, and
including all extensions and renewals thereof, together with all copyright
registrations obtained therefor, and any renewals or extensions of such
copyright registrations, and together with all rights to ▇▇▇ and recover for any
past infringements of any of the copyrights), and all other equivalent or
similar rights which may subsist anywhere in the world.
To the extent any such Work is protectable under U.S. copyright laws, such Work
shall be considered a "work made for hire" as that phrase is defined by such
laws and shall be owned solely and exclusively by and for the express benefit of
the Company. In the event such Work does not constitute a "work made for hire",
Assignor hereby irrevocably and exclusively sells, assigns and transfers to the
Company its entire right, title and interest in and to such Work (other than
"Developer's Tools"), including, without limitation, all Intellectual Property
Rights therein or relating thereto. Assignor agrees to waive all of its moral
rights, if any, relating to the Work, including any rights of identification of
authorship and any and all rights of approval, restriction or limitation on use
thereof or subsequent modifications thereto.
And for the same consideration Assignor does hereby agree for itself and for its
respective heirs, executors and administrators, at the Company's cost, to (i)
reasonably cooperate with the Company in the protection and enforcement of any
Intellectual Property Rights that derive from the Work; and (ii) provide all
reasonable assistance and execute, acknowledge and deliver all documents
reasonably requested by the Company in the establishment, publication,
preservation, protection and enforcement of its rights in said Work.
Assignor hereby represents, warrants and covenants that Assignor has granted no
right or license to make, use or sell said Works (other than Developer's Tools)
to anyone except the Company, that prior to the execution of this deed all of
its right, title and interest in and to said Works has not been otherwise
encumbered by Assignor, and that Assignor has not executed and will not execute
any instrument in conflict herewith.
Nothing in this Agreement will be construed to restrict Assignor from using
intangible residual know-how or general knowledge or concepts retained in the
mind of Assignor's employees and consultants in developing products or
performing services provided that Assignor or its employees and consultants do
not reference, incorporate or use any confidential information of the Company or
otherwise infringe on the Intellectual Property Rights of the Company. Further,
nothing in this Agreement will be construed to grant to the Company exclusive
ownership of the concepts and processes incorporated in the GATE Universal
System which are generally known in the industry; and (2) except for the tier
pricing and specific content (namely, the data, criteria, variables, formulas
and relationships between each of the data points) embodied in the GATE
Universal System, Assignor may use such concepts and processes incorporated in
the GATE Systems in developing similar loan origination systems for itself or
others, so long as Assignor does not breach its confidentiality obligations to
the Company or violate the copyrights or trade secret rights of the Company.
IN WITNESS WHEREOF, I have executed this Assignment on the 1st day of
July, 2003.
V-Tek Systems Corporation, a California Corporation
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: President/CEO
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Date: 7/8/2003
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ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF Los Angeles
BEFORE ME, the undersigned authority on this day personally appeared
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the 8th day of
July, 2003.
__________________________________________
Notary Public in and for Los Angeles County,
California
My Commission expires: 8/18/2004
/s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇