EXHIBIT 10.65
AMENDMENT NUMBER ONE TO THE
OEM AGREEMENT
BETWEEN
WIND RIVER SYSTEMS, INC.
AND
INSIGNIA SOLUTIONS, INC.
This Amendment 1 to the OEM Agreement dated December 22, 2000 (the "Agreement")
is entered into as of this 28th day of December 2000, ("Effective Date") by and
between Insignia Solutions, Inc., a Delaware corporation, with its principal
offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Insignia") and Wind River
Systems, Inc., a Delaware corporation having its principal place of business at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("WRS"). The capitalized terms in this
Amendment are as defined in the Agreement, unless expressly defined otherwise in
this Amendment.
RECITALS:
WHEREAS both parties wish to modify some of the provisions of the Agreement as
previously executed;
NOW, THEREFORE, the Parties hereby agree to modify the provisions of the
Agreement as follows:
SECTION 1, DEFINITIONS. This section contains a definition of the term "Product
Roadmap".
The definition of Product Roadmap currently reads: "means the document which
details planned enhancements to Jeode Software and/or Jeode Based Products and
timeframes for the expected release of such enhancements, a specimen of which is
attached at Appendix B;
THE FOREGOING IS REPLACED ENTIRELY BY THE FOLLOWING DEFINITION:
"Product Roadmap" means the document which details planned enhancements to Jeode
Software and/or Jeode Based Products and timeframes for the expected release of
such enhancements.
ADDITIONALLY, Appendix B is entirely deleted.
Other than as stated immediately above, the Parties do not intend to modify any
other provisions of the Agreement. All other provisions and terms remain
unchanged.
IN WITNESS WHEREOF, the parties have caused this Amendment One to be executed by
their authorized representatives as of the Effective Date.
ON BEHALF OF INSIGNIA SOLUTIONS, INC. ON BEHALF OF WIND RIVER SYSTEMS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------- --------------------------------------
(Signature) (Signature)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------- --------------------------------------
(Name) (Name)
C.F.O. VP Operations
-------------------------------------- --------------------------------------
(Title) (Title)
30 December 2000 12/30/2000
-------------------------------------- --------------------------------------
(Date) (Date)
DATED DECEMBER 2000
OEM AGREEMENT
BETWEEN
WIND RIVER SYSTEMS, INC.
AND
INSIGNIA SOLUTIONS, INC.
[COMPANY LETTERHEAD]
TABLE OF CONTENTS
PAGE
1 DEFINITIONS...............................................................1
2 LICENSES..................................................................4
3 LICENSOR OBLIGATIONS......................................................6
4 TECHNOLOGICAL DEVELOPMENTS................................................7
5 DOCUMENTATION.............................................................8
6 MARKETING AND SALES SUPPORT...............................................9
7 PAYMENT AND CHARGES......................................................10
8 SUPPORT AND MAINTENANCE..................................................14
9 LICENSOR WARRANTIES......................................................14
10 INTELLECTUAL PROPERTY RIGHTS.............................................15
11 WARRANTIES AND REPRESENTATIONS OF THE PARTIES............................16
12 INDEMNIFICATION..........................................................18
13 LIMITATION OF LIABILITY..................................................18
14 OPTION TO PURCHASE.......................................................19
15 CONFIDENTIALITY..........................................................21
16 TERMINATION..............................................................21
17 CONSEQUENCES OF TERMINATION..............................................22
18 GENERAL..................................................................22
SCHEDULE 1.....................................................................27
SCHEDULE 2.....................................................................30
SCHEDULE 3.....................................................................31
SCHEDULE 4.....................................................................32
SCHEDULE 5.....................................................................33
APPENDIX A.....................................................................35
APPENDIX B ....................................................................43
APPENDIX C.....................................................................48
APPENDIX D.....................................................................55
APPENDIX E.....................................................................56
APPENDIX F.....................................................................57
i
THIS AGREEMENT is made on December 2000
BETWEEN:
(1) WIND RIVER SYSTEMS, INC. a Delaware corporation, whose address is ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
("Licensee"); and
(2) INSIGNIA SOLUTIONS, INC., a Delaware corporation whose address is ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
("Licensor").
INTRODUCTION
(A) Licensor and its Affiliates (as defined below) have conceived, developed
and owns Jeode technology. Jeode technology relates to Licensor's
accelerated software implementation of Sun's PersonalJava and
EmbeddedJava specifications. Included in Jeode technology is the Jeode
embedded virtual machine, an accelerated run-time engine that optimizes
performance and memory. Jeode technology also includes Insignia's
proprietary dynamic adaptive compilation techniques.
(B) Licensor wishes to grant to Licensee and Licensee wishes to obtain from
Licensor, licenses to use, copy, modify, create derivative works of,
exploit and sub-license the Jeode technology on the terms and conditions
set out in this Agreement.
(C) The parties have also agreed that they will cooperate with each other in
relation to the development, sales and marketing of the Jeode technology
and Jeode Based Products (as defined below). They have also agreed that
Licensee will take an option to purchase a perpetual license in relation
to the Jeode technology on the terms and conditions set out in this
Agreement.
THE PARTIES AGREE as follows:
1 DEFINITIONS
1.1 IN THIS AGREEMENT:
"AFFILIATE" means (i) any person that is Controlled by, Controls or is
under common Control with, a Party, (ii) any person in which a Party owns
shares representing at least twenty percent (20%) of the outstanding
equity of such person or (iii) any affiliate (as defined in subsection
(i) hereof) of a person that owns, directly or indirectly, shares
representing at least twenty percent (20%) of the outstanding equity of
such Person. For purposes of this definition, "CONTROL" and correlative
terms shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of management or policies (whether through
ownership of securities or other ownership interests, by contract or
otherwise);
"API" means application programming interface;
"BINARIES" means a compiled machine-readable only version of the Jeode
Software;
"COMMENCEMENT DATE" means the date hereof;
"CONFIDENTIAL INFORMATION" means all non-public or proprietary
information disclosed by Licensor or Licensee or any of their respective
Affiliates including, but not limited to,
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Jeode Source Code and Specifications and any Product Roadmaps (whether
owned by the disclosing Party or a third party to whom the disclosing
Party owes a confidentiality obligation) other than information which the
receiving Party can demonstrate: (i) was known to the receiving Party at
the time of the disclosure by the disclosing Party as evidenced by
written or other time-stamped documentation; (ii) becomes publicly known
through no wrongful act of the receiving Party, its servants or agents;
(iii) has rightfully been received by the receiving Party from a third
party with no obligation of confidentiality; or (iv) has been
independently developed by the receiving Party as evidenced by written or
time-stamped documentation;
"DELIVERABLES" means the software and hardware components detailed in
Schedule 4;
"DOCUMENTATION" means the operating manuals, user instructions, technical
literature and all other materials related to Intellectual Property, in
either printed or machine readable form;
"INTELLECTUAL PROPERTY" means, wherever existing in the world and
existing during the term of this Agreement, (i) patents, whether in the
form of utility patents or design patents, and all pending applications
for registration thereof, (ii) trademarks, (and, in the case of Licensor,
the Trademarks) trade names, service marks, domain names, designs, logos,
trade dress and trade styles, whether or not registered, and all pending
applications for registration thereof, (iii) copyrights, database rights
whether or not registered, and all pending applications for registration
thereof, (iv) know-how, inventions, research records, trade secrets,
Confidential Information, product designs, engineering specifications and
drawings, technical information, formulae, lists of actual or potential
customers or vendors, licensors or licensees and market analyses, (v)
computer software and programs, including, without limitation, computer
programs embedded in semiconductor chips or otherwise embodied, and
related flow charts, programmer notes, documentation, updates and data,
whether in object or source code form, and (vi) all other similar
intellectual property rights, whether or not registered;
"JEODE BASED PRODUCTS" means any Licensee product which incorporates
Jeode Software for use with Wind River Operating Systems;
"JEODE SOFTWARE" means the software detailed in Schedule 1 and all
modifications, updates and future generations of such software created by
Licensor;
"JEODE SOURCE CODE" means the Source Code for the Jeode Software;
"LICENSEE INTELLECTUAL PROPERTY" means Intellectual Property owned or
possessed by Licensee;
"LICENSOR INTELLECTUAL PROPERTY" means Intellectual Property owned or
possessed by Licensor;
"MINIMUM QUARTERLY FEES" means the prepaid accrued sums covering Run Time
Royalties, Project Fees and Source Code License Fees as described in
Clause 7.1;
"MINIMUM QUARTERLY OPTION FEES" means the prepaid accrued sums covering
Run Time Royalties, Project Fees and Source Code License Fees as
described in Clause 14.3.1;
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"OPTION" means the option detailed in Clause 14;
"OPTION EXECUTION DATE" means the date of Licensor's receipt of notice
from Licensee that Licensee intends to exercise the Option;
"PARTY" or "PARTIES" mean, as the case may be, Licensor and/or Licensee;
"PRODUCT ENHANCEMENT REQUEST" means a communication in whatever format or
medium made by Licensee to Licensor requesting enhancements to the Jeode
Software;
"PRODUCT ROADMAP" means the document which details planned enhancements
to Jeode Software and/or Jeode Based Products and timeframes for the
expected release of such enhancements, a specimen of which is attached at
Appendix B;
"PROJECT FEE" means the sum detailed in Clause 7.4 (which includes 1000
Run Time Royalties) payable by Licensee to Licensor when Licensee
recognizes revenue from its customers in relation to a license to use
Jeode Based Products;
"QUARTER" means the three month period commencing on January 1, 2001, and
every three month period thereafter, for the term of this Agreement;
"RUN TIME ROYALTIES" means the sums payable to Licensor by Licensee for
each copy of Jeode Software licensed or sublicensed by Licensee or its
customers respectively;
"SOURCE CODE" means software and/or Documentation in a form in which the
program logic is easily deduced by a human being, such as a printed
listing of the programs, or in an encoded machine-readable form, such as
might be recorded on magnetic tape, disk, or diskette, from which a
printed listing can be made by processing it with a computer;
"SOURCE CODE LICENSE FEES" means the fees detailed in Clause 7.5.2;
"SPECIFICATIONS" means the specifications describing the Jeode Software
set out in Schedule 1;
"SUN" means Sun Microsystems Inc., its affiliates and its successors and
assigns;
"SUN COMMUNITY SOURCE LICENSE" means Sun's license terms which governs
use of certain Java Source Codes;
"TRADEMARKS" means the trademarks set out in Schedule 3, including the
registrations or the applications for registration thereof;
"TRANSACTIONAL LICENSE FEES" shall have the same meaning as set out in
Clause 7.1 or Clause 14.3.1 as the case may be;
"UPDATES" means maintenance releases, improvements and enhancements which
are generally provided to licensees who are eligible to receive
maintenance support services;
"UPGRADES" means a significant enhancement or extension of the applicable
product that generally expands the capability of, or includes additional
capabilities to, such product, and is provided on a fee basis; and
3
"WIND RIVER OPERATING SYSTEMS" means any current or future operating
system licensed (or to be licensed) by Licensee and either developed by
Licensee or branded by Licensee, including (without limitation) those
operating systems listed in Schedule 2 and any amendments, updates or
modifications thereto.
1.2 In this Agreement (except where the context otherwise requires):
1.2.1 any reference to a Recital, Clause or Schedule is to the relevant
Recital, Clause or Schedule of or to this Agreement and any
reference to a sub-clause or paragraph is to the relevant
sub-clause or paragraph of the Clause or Schedule in which it
appears;
1.2.2 the clause headings are included for convenience only and shall
not affect the interpretation of this Agreement;
1.2.3 use of the singular includes the plural and vice versa;
1.2.4 use of any gender includes the other genders;
1.2.5 any reference to "persons" includes natural persons, firms,
partnerships, companies, corporations, associations,
organisations, governments, states, foundations and trusts (in
each case whether or not having separate legal personality).
2 LICENSES
2.1 GRANT OF LICENSES
Licensor grants Licensee the following exclusive, transferable worldwide
rights and licenses:
2.1.1 to use, copy, develop, demonstrate and adapt and create derivative
works of Binaries solely for the purpose of developing Jeode Based
Products;
2.1.2 subject to ensuring compatibility with the applicable Sun Java
specifications, the right to copy, sub-license, create, sell,
distribute, export and otherwise commercially exploit Binaries to
its customers as incorporated into Wind River Operating Systems as
Jeode Based Products;
2.1.3 subject to the terms of the Sun Community Source License, the
right to access, use, copy, develop, modify, create derivative
works of, and adapt the Jeode Source Code so as to enable Licensee
to use, copy, adapt, modify, create derivative works of,
incorporate, sublicense and commercially exploit the Jeode
Software with Wind River Operating Systems as Jeode Based
Products;
2.1.4 the right to sub-license the Jeode Source Code in connection with
a Jeode Based Product to Licensee's OEM customers provided that
such customers execute Sun's Source Code license agreement and an
agreement which amongst other things, includes provisions which
are at least as protective and substantially similar to those
provisions set out in Appendix A in relation to protection of
Licensor Intellectual Property in the Source Code;
4
2.1.5 the right for the shipment of Jeode Software for use with any Wind
River Operating Systems;
2.1.6 to provide, distribute, export, sublicense and sell Jeode Based
Products.
2.2 Licensor further grants Licensee an exclusive, transferable license to
sublicense any of the rights and licenses detailed in Clauses 2.1.1,
2.1.2, 2.1.5 and 2.1.6 to any of its direct sub-contractors, partners,
resellers and agents provided such rights solely relate to use or
incorporation of the Jeode Software with Wind River Operating Systems or
relate to Jeode Based Products. For the avoidance of doubt the licenses
detailed in this Agreement and the Option are only transferable to a
Licensee Affiliate pursuant to Clause 18.11.
2.3 TERM
This Agreement shall commence on the Commencement Date and unless
previously terminated in accordance with Clause 16 shall remain in effect
until three (3) years from the Commencement Date (the "INITIAL TERM") and
thereafter for successive periods of one year (a "RENEWAL PERIOD"),
unless either Party gives written notice to the other Party not later
than ninety (90) days before the end of either the Initial Term or the
then current Renewal Period to terminate this Agreement at the end of
either the Initial Term or that Renewal Period, as the case may be.
2.4 LICENSOR'S TRADEMARKS
2.4.1 Licensor hereby grants to Licensee (and to no third party) a
limited, non-exclusive, transferable royalty-free and fully paid
up license to use the Trademarks in the promotion, advertisement,
sale and licensing of Jeode Based Products. Licensor's grant of a
limited license to exploit the Trademarks under this Agreement
will extend during the term of this Agreement until the occurrence
of the Option Execution Date, if any. In the event the Option
Execution Date occurs, then the Trademark license granted herein
will terminate either on the expiry of twelve (12) months from the
Option Execution Date or upon Licensee's next major revision of
Jeode Based Products, whichever is the earlier. For the avoidance
of doubt the license detailed in this Clause is only transferable
to a Licensee Affiliate pursuant to Clause 18.11.
2.4.2 Licensee acknowledges that this Agreement does not operate to vest
any title in the Trademarks in Licensee and that all goodwill
resulting from Licensee's use of the Trademarks shall accrue to
Licensor.
2.4.3 Licensee shall not, at any time while Licensor retains any right
to the Trademarks, adopt, use or register without the prior
written consent of Licensor any word or symbol or combination of
words and symbols which is confusingly similar to any Trademarks
in relation to any goods similar to the Jeode Software.
2.4.4 Licensee shall not, without the prior written consent of Licensor,
alter, deface or remove any reference to the Trademarks, copyright
notices, any reference to Licensor or any other name attached or
affixed to the Documentation, Source Code or Binaries or their
packaging or labelling.
5
2.4.5 Licensee shall attribute any reference to the Trademarks to the
Licensor in any advertising, brochures, documentation and
literature that use such trademarks.
2.4.6 Licensee agrees that it will not knowingly use any Trademark of
Licensor in any manner which may adversely reflect upon Licensor's
name, identity, products or goodwill. Licensee agrees that it will
forbear from using any Trademark in comparative advertising
featuring Licensor's products.
2.4.7 Licensee agrees to keep Licensor advised of the manner of use of
Licensor's Trademarks, to provide Licensor with samples of the
uses of Licensor's Trademarks, and to work with Licensor on any
quality concerns that may arise.
2.4.8 Licensor will have the right to terminate the license to the
Trademarks granted in this Agreement upon demonstration by
Licensor that a use of Licensor's Trademarks by Licensee does not
meet Licensor's quality standards as previously notified in
writing to Licensee. Licensor may terminate such Trademark License
rights upon ninety days written notice to Licensee; provided,
however, that such termination notice shall have no effect if
Licensee cures the quality defects within the ninety day cure
period.
3 LICENSOR OBLIGATIONS
3.1 Within fifteen (15) days following the Commencement Date, Licensor
shall provide the Licensee with the Deliverables.
3.2 During the Jeode Source Code training (a proposal for which is
detailed in Schedule 5) Licensor shall provide Licensee with specific
instruction on the use of all external APIs and various lower level
APIs as Licensee requires. Licensor shall also explain its estimation
of the probability of potential for change in each available API and
recommend the APIs that are likely to be best used by Licensee.
3.3 Prior to Licensee beginning any development of the Jeode Software that
is dependent on APIs, upon Licensee's request Licensor shall provide
Licensee with a comprehensive update on the status and outlook for any
potential changes required to the Jeode Software.
3.4 For APIs that may evolve based on effects of new releases of Java
technology from Sun, Licensor shall proactively inform Licensee of
these pending changes promptly after it is informed of the same and
will keep any API changes to a minimum and provide Licensee with
advanced specifications and implementations of the API changes.
3.5 At any time Licensee may notify Licensor of any API which Licensee
considers is important. In which event Licensor shall use commercially
reasonable endeavours to collaborate with Licensee in relation to any
proposed changes to such API.
3.6 Licensee may at its sole discretion determine that a new API should be
created to insulate it from underlying changes in the Jeode Software.
In such event and consistent with Clause 7.11, Licensor will endeavor
to co-operate with Licensee to accommodate all Licensee's reasonable
requests. The specification for each proposed new API or modified API
shall be agreed to by Licensor (such agreement not to be unreasonably
withheld or delayed). Licensor shall treat such API as Confidential
Information for the purposes of this Agreement as requested by
Licensee.
6
3.7 Licensor shall use commercially reasonable endeavours to comply with
Sun Java specifications for the embedded markets, as evidenced by
compliance with Sun Java technology compatibility kits. Licensor shall
promptly notify Licensee if a commercial release fails to comply with
Sun Java technology compatibility kits or if it no longer is a Sun
Java licensee.
4 TECHNOLOGICAL DEVELOPMENTS
4.1 The Parties wish to cooperate in developing the definition, direction and
timing of various enhancements to the Jeode Software. To this end the
Parties have agreed the following:
4.1.1 Licensor and Licensee shall each provide to the other by the end
of each Quarter during the term of this Agreement a Product
Roadmap. The Product Roadmap is a representation of Licensor's
current plans and is not a commitment to develop or deliver future
products.
4.1.2 Licensee may at any time submit a Product Enhancement Request to
Licensor. Licensor shall within 5 business days of receipt of the
Product Enhancement Request:
4.1.3 consider the contents of the Product Enhancement Request and at
its sole and absolute discretion advise Licensee that it will
either decline to participate in the Product Enhancement Request
or that it will prepare a statement of work setting forth
Licensor's estimate of the man-hours for completing the Product
Enhancement Request, a specification for the enhancement, and
details of any acceptance testing to be undertaken.
(a) If Licensor decides a Product Enhancement should be made
part of a standard release of Jeode Software Licensor will
undertake the development work and (if the enhancement
passes the acceptance tests detailed in the statement of
works) include the enhancement in a future release of the
Jeode Software, all at no cost to Licensee. If Licensor
decides that the enhancement should be made as a standard
release but that it is unable to create the enhancement
within the timescales requested, Licensor will promptly
inform Licensee and Licensee may at its sole and absolute
discretion undertake (or pursuant to the licenses granted
in Clauses 2.1 including 2.1.3 for the purpose of procuring
that the work is undertaken so as) to create the
enhancement.
4.1.4 In the event that Licensee wants certain enhancements to the Jeode
Software and requires an exclusive right to use, copy, adapt,
create derivative works of, distribute, sell, sublicense and
commercially exploit the enhancement then Licensee may at its sole
and absolute discretion decide either:
(a) to ask Licensor to undertake the work in which event
Licensor shall (pursuant to Clause 7.11) provide the
enhancement to Licensee and grant Licensee an exclusive,
transferable (pursuant to Clause 18.11), worldwide license
to copy, adapt, sublicense and generally exploit the Jeode
Software with the enhancement; or
(b) may perform the work itself or procure the work from a
third party. For the avoidance of doubt all Intellectual
Property in the enhancement
7
(other than the Licensor's underlying Intellectual Property
in the Jeode Software not relating to the enhancement)
produced pursuant to this Clause 4.1.4(b) shall vest in the
Licensee and not in Licensor. Thereafter the Licensee may
in its sole and absolute discretion provide the enhancement
to Licensor with the license set forth in Clause 4.1.6 to
store the Licensee Code (as defined in Clause 4.1.6) and
Documentation of the enhancement on Licensor's development
or maintenance systems on Licensee's behalf. Such exclusive
enhancements may not be copied, modified, translated,
reverse engineered, decompiled, disassembled, sub-licensed,
demonstrated, lent, hired or otherwise provided to any
third party by Licensor. If Licensor stores the enhancement
for Licensee then Licensor shall ensure that the
enhancement is kept secure from unauthorised access with
the same degree of care Licensor uses to protect its own
software, and the Parties agree that the enhancement will
be treated as Confidential Information.
4.1.5 Any enhancement made by Licensor for the purposes of fixing bugs
or errors shall be without charge to Licensee if the bug or error
is not caused by Licensee or its contractors.
4.1.6 Treatment of Licensee Code. Subject to Licensor's underlying
Intellectual Property Rights in the Jeode Software other than the
enhancement, Licensee will own all right, title and interest in,
to and under all works made by or on behalf of Licensee to Jeode
Software, including without limitation, porting-related
modifications and/or other code owned or possessed by Licensee for
the development or maintenance of the Jeode Software ("Licensee
Code"). Licensee, in its sole discretion, may make Licensee Code
and related Documentation available to Licensor; provided,
however, that unless otherwise expressly provided in writing by
Licensee, such Licensee Code and Documentation shall be treated by
Licensor as Confidential Information and Licensor's use of such
Licensee Code and Documentation shall be limited solely to the
purposes of providing services to Licensee under the terms of this
Agreement, and for no other purpose. Licensor shall not (and shall
not permit any third party to) copy, modify, translate, reverse
engineer, decompile, disassemble, sub-license, demonstrate, lend
or hire the Licensee Code or grant any security interest in
relation thereto or otherwise provide Licensee Code or
Documentation to any third party. Notwithstanding any other
provision hereof or any other agreement between the Parties,
Licensor's access to Licensee Code and Documentation pursuant to
this Agreement, shall not be construed as preventing employees of
Licensor who lawfully have had access to such Licensee Code and
Documentation from drawing upon or using any skills, knowledge,
talent or experience of a general nature acquired by them in the
course of working with such Licensee Code and Documentation,
provided that (i) such employees may not directly or indirectly
use, copy, modify, adapt, create derivative works of, refer to or
rely on the Licensee Code or Documentation and (ii) such employees
do not infringe Licensee Intellectual Property rights or
confidentiality obligations not otherwise within the scope of any
express written licenses granted to Licensor.
8
5 DOCUMENTATION
Licensor shall provide to Licensee electronic copies of the Documentation
containing all information relating to the Jeode Software which will
enable Licensee to exercise its license rights hereunder. Licensee may
copy (in any media or format) adapt, modify or merge the Documentation
provided that it complies with Clause 2.4 in relation to Licensor's
Trademarks and copyright notices.
6 MARKETING AND SALES SUPPORT
6.1 LEADS
Licensor shall immediately pass to Licensee all sales leads and enquiries
relating to Wind River Operating Systems and provide to Licensee details
concerning the leads and enquiries by way of completing the proforma lead
sheet a specimen of which is attached at Appendix E. If Licensor is of
the reasonable opinion (after making all relevant enquiries) that the
enquirer is interested in more than one operating system then Licensor
shall also pass the lead and all details relating thereto to such other
vendors as Licensor deems appropriate.
6.2 GENERAL SALES SUPPORT
Licensor will provide Licensee with all support, cooperation and
resources so as to enable Licensee to sublicense sell and exploit the
Jeode Software pursuant to the terms of this Agreement.
6.3 PRE-INTEGRATION SALES POLICY
Licensor acknowledges and accepts that once the terms of this Agreement
are announced in an agreed upon public statement pursuant to Clause 18.3,
some of Licensor's customers will want to migrate to Licensee and become
customers of Licensee. Accordingly, Licensor shall within thirty (30)
days of Commencement Date implement a non-discriminatory sales
compensation system among its representatives so as to reasonably ensure
that such customers are not penalised (financially or otherwise) in doing
so including (without limitation):
(a) disclosing to the customer the nature of the relationship
between the Parties (subject to obtaining Licensee's prior
written consent and ensuring the customer executes a
non-disclosure agreement); and
(b) cooperating with Licensee so as to keep redundant fees
(such as maintenance fees) payable by the customer to a
minimum.
6.4 Licensor shall provide to Licensee electronic versions of all appropriate
product marketing materials relating to the Jeode Software, including
without limitation, any data sheets, Licensor presentations, web content,
and Licensor training materials generated by or in the possession of
Licensor. Licensee shall have the unfettered right to copy, adapt, modify
re-brand and re-purpose such material for its own product marketing
efforts.
6.5 Licensee shall be solely responsible for compliance with and the
obtaining of any export licenses which may be required for distribution
by Licensee. Licensor shall promptly provide answers to Licensee
technical questions relating to the Jeode Software where
9
such questions are not answered by the Documentation to enable Licensee
to obtain such export licenses.
6.6 Licensor will designate at least two technical experts who will serve as
points-of-contact to address questions and issues that arise from
pre-sales opportunities. Licensor will make every reasonable effort to
assist Licensee in meeting Licensee requests for Jeode Software
information during pre-sales engagements and accordingly will agree to
provide additional resources and/or technical experts which are
reasonably necessary to meet this demand. Such investment of Licensor
resource for a given case will be reasonably balanced against the value
of the relevant opportunity and the total pre-sales support load that
Licensee is requesting from Licensor.
7 PAYMENT AND CHARGES
7.1 MINIMUM QUARTERLY FEES SCHEDULE
7.1.1 The Parties have agreed that over the term of this Agreement
Licensee shall pay the Minimum Quarterly Fees. The Parties shall
treat such Minimum Quarterly Fees as prepayment of the
transactional royalties and fees detailed in Clauses 7.3, 7.4 and
7.5.2. The payment of Minimum Quarterly Fees will build up a
credit against the transactional royalties and fees detailed in
Clauses 7.3, 7.4 and 7.5.2 which arise as a result of sales or
licenses of Jeode Based Products and/or Jeode Source Code
("TRANSACTIONAL LICENSE FEES"). The Transactional License Fees
shall be offset against the cumulative Minimum Quarterly Fees
credit so that (in addition to continuing to pay the Minimum
Quarterly Fees) Licensee shall only pay an amount exceeding the
Minimum Quarterly Fees (as Transactional License Fees) if and when
the total aggregate Transactional License Fees exceeds the unused
portion of the cumulative Minimum Quarterly Fees credit.
An illustration of the process described in this Clause 7.1 (and
Clause 14.3.1) is set out in Appendix F.
7.1.2 As consideration for the licenses granted in Clause 2.1 and the
benefits and services pursuant to Clauses 7.3, 7.4 and 7.5.2 (but
not 7.7 to 7.11), Licensee shall pay the following Minimum
Quarterly Fees:
$XXXX on execution of this Agreement;
$XXXX no later than March 15, 2001;
$XXXX on each of June 15, 2001, September 15, 2001; and December
15, 2001;
$XXXX on each of on or before the 15th day of the last month of
each Quarter in 2002;
$XXXX on each of on or before the 15th day of the last month of
each Quarter in 2003.
If the Agreement continues into 2003 then no later than six months
prior to the end of 2003 the Parties shall negotiate new fees
payable for the year 2004 onwards.
10
7.2 SPECIAL OPTION
If, at any time during the course of Licensee FY02 business year
(February 1, 2001 - January 31, 2002), Licensee determines in its sole
and absolute discretion that the Minimum Quarterly Fees exceeds
Licensee's actual distribution rate for Jeode Based Products, it may
notify Licensor, no earlier than March 1, 2002, that it wishes to
discontinue paying the Minimum Quarterly Fees 90 days from the date of
receipt of notice to the Licensor of such an election. All payments due
Licensor hereunder within that 90-day period nevertheless shall be paid
by Licensee.
Upon Licensee's election under this Clause, the exclusive nature of
Licensee's rights granted under this Agreement shall continue until the
earlier of either (i) the period of time for the Minimum Quarterly Fees
paid by Licensee, is actually exceeded by actual Transactional License
Fees or (ii) the end of the twelve (12) month period immediately
following the end of the 90-period provided in this Clause 7.2.
Thereafter, Licensee's rights granted hereunder, to the extent such
rights are not already non-exclusive, shall be deemed non-exclusive. If
Licensee exercises this option, it will continue to report its usage
pursuant to Clause 7.16.1, and once the Minimum Quarterly Fees have been
fully utilized (as described in Clause 7.1) it shall begin remitting
Transactional License Fees to Licensor with its reports on and as used
basis detailed in Clause 7.3.
7.3 RUN TIME ROYALTIES
To the extent that the aggregate value of Transactional License Fees
exceeds the cumulative total of Minimum Quarterly Fees, Licensee shall
pay Licensor Run Time Royalties according to the following schedule in
payment for the licenses granted herein:
-------------------------------------------------------------------------------------
RUN TIME ROYALTY RATES
-------------------------------------------------------------------------------------
SUN TECHNOLOGY WITHIN JEODE INSIGNIA ROYALTY RATE
BASED PRODUCTS
---------------------------------------------- --------------------------------------
EmbeddedJava $XXXX
---------------------------------------------- --------------------------------------
PersonalJava $ XXXX
---------------------------------------------- --------------------------------------
CDC/PersonalJava Profile* $ XXXX
---------------------------------------------- --------------------------------------
* when available
If Licensor's independent auditors provide an opinion which in Licensor's
sole discretion is acceptable to Licensor to the effect that Licensor
need not recognize as Licensor revenue, Run Time Royalty payments due to
Sun, then Licensor shall promptly notify Licensee of same and Licensee
shall have the option to advise Licensor at least forty-five (45) days
prior to the beginning of any Quarter, that Licensee will make payments
due Sun by paying Licensor, which payments will pass through Licensor and
be promptly made to Sun. Pursuant to Licensor's current pricing, the Sun
portion would be $ XXXX for EmbeddedJava and $ XXXX for PersonalJava. For
the avoidance of doubt these amounts are not included within the Minimum
Quarterly Fee.
11
7.4 PROJECT FEES
Licensee will pay Licensor a Project Fee of $XXXX, which includes one
thousand Run Time Royalties.
7.5 SOURCE CODE LICENSE FEE
7.5.1 In payment for the limited license granted to Licensee for use of
Licensor's Jeode Source Code, Licensor will pay Licensee a license
fee in the amount of $XXXX on the Commencement Date.
7.5.2 For each copy of Jeode Source Code distributed by Licensee
pursuant to Licensee's rights to sublicense Source Code under
Clause 2.1.4, Licensee will pay Licensor a fee in the amount of $
XXXX. For the avoidance of doubt this figure will be included
within the Minimum Quarterly Fee.
7.5.3 Licensee agrees not to disclose the sums payable to Licensor in
respect of each sub-license of Jeode Source Code to the general
public, but may confidentially disclose it in the context of
specific customer discussions. For the avoidance of doubt nothing
in this Agreement shall prevent Licensee from advertising or
disclosing its own license and other fees.
7.6 SPECIAL PRICING FOR EXTRAORDINARY SITUATIONS
Licensor agrees that in some extraordinary circumstances, at very high
volumes (e.g. XXXX units or higher), or in certain special markets,
special pricing consideration may be required. Licensor and Licensee
agree to negotiate special pricing and to jointly seek cooperation of any
third parties (e.g., Sun) needed in these cases, so long as any discounts
are applied equally to all of the other components in Licensee's
offering.
7.7 MOST PREFERRED DISTRIBUTOR
If, during the term of this Agreement, Licensor should enter into a third
party distributor agreement related to Jeode Software and including the
same or similar subject matter, documentation, services and cooperation
provided and licensed to Licensee pursuant to the terms of this Agreement
on the same or substantially similar terms to the terms of this Agreement
and at lower prices than those agreed hereunder, then such lower prices
shall, at the Licensee's option, supersede and be substituted for those
prices and charges set out or referred to in this Agreement provided any
other economic terms are also met. Such substituted price and charge
rates to be made effective as of the date of the relevant third party
agreement. However, upon the occurrence of the Option Execution Date, if
any should occur during the term of this Agreement, then the preferred
prices shall revert to the prices and charges set forth in this Agreement
without regard to any third party agreements. Such reversion shall be
deemed effective as of the Option Execution Date.
7.8 TECHNOLOGY TRANSFER TRAINING
In consideration of the training described in this Agreement, Licensee
will agree to pay XXXX dollars ($XXXX) for 30 days of technology transfer
training at date(s) to be agreed in writing.
12
7.9 ANNUAL MAINTENANCE AND UPDATE SERVICE
In consideration of the maintenance and update services as described in
Appendix C to be provided in this Agreement during the first year from
the Commencement Date, Licensee shall pay Licensor XXXX dollars ($XXXX).
For the second and subsequent years of service, Licensee may continue
with (in which case Licensor shall provide) the same level of service as
the first year for XXXX US dollars ($XXXX) per year, or negotiate a
higher level of service.
7.10 INTEGRATION SERVICES
In consideration of the integration services detailed in paragraph 4(g)
of Appendix C to this Agreement, Licensee shall pay Licensor XXXX dollars
($XXXX).
7.11 NON-RECURRING ENGINEERING ("NRE") FEES
If NRE work is required, Licensor shall charge the following rates: $XXXX
per staff day; $XXXX per staff month; or $XXXX per staff year for a
dedicated Licensor engineer. These rates will increase by XX% per year
from 1 February 2002. Additional fees may also be required for items such
as equipment, materials, travel and lodging as necessary to facilitate
the NRE work. Such fees will only be payable if Licensee has previously
agreed to the type and level of additional fees.
7.12 PAYMENT TERMS
7.12.1 The first Minimum Quarterly Fees will be due upon the Commencement
Date. Subsequent Minimum Quarterly Fees will be due on the Quarter
days specified in Clause 7.1. If the total aggregate value of
Transactional License Fees should exceed the unused portion of the
cumulative Minimum Quarterly Fees credit, then Licensee will
report the difference and (in addition to payment of the Minimum
Quarterly Fees) pay the excess Transactional License Fees owed to
Licensor (as illustrated in Appendix F). Payment terms for Sun
pass through payments pursuant to 7.3 if applicable, shall be
negotiated at such time.
7.12.2 The annual maintenance and update service fee is payable in
advance and may be paid in equal Quarterly instalments. Payment
for each subsequent Quarter of service will be due prior to the
expiration of the current Quarterly service period.
7.12.3 Unless otherwise already stated above, Licensee will pay Licensor
all fees, including Minimum Quarterly Fees and where appropriate
fees due under Clause 14.3 within 30 days after receipt of invoice
from Licensor, and without prejudice to Licensee's rights and
remedies, all fees are non-refundable.
7.13 Unless specified otherwise in this Agreement, all amounts payable under
this Agreement shall be paid in US Dollars.
7.14 Any and all payments which may be payable by Licensee to Licensor under
the terms of this Agreement shall be made by wire transfer on an account
designated in writing by Licensor.
13
7.15 Any taxes or duties (other than income or profits taxes assessed or
imposed upon the sums due to Licensor), upon or with respect to this
Agreement shall be borne and discharged solely by Licensee provided such
taxes or duties would be lawfully imposed on Licensee other than pursuant
to this Clause.
7.16 RECORD KEEPING
7.16.1 Licensee shall submit reports to Licensor detailing payments
received and customer details in relation to the licensing and
sale of Jeode Based Products.
7.16.2 Both Licensor and Licensee shall maintain complete and accurate
accounting records, in accordance with sound accounting practices,
to support and document all license fees and all other sums
distributed or received in connection with this Agreement. As
regards Licensee the records need only relate to licences or sales
of Jeode Based Product. Such records shall be retained for a
period of at least 3 years, and shall be made available to either
party, upon reasonable notice.
7.16.3 Each party ("AUDITING PARTY") shall have the right to inspect the
books and records of the other party maintained pursuant to Clause
7.16.2 ("AUDITED PARTY") (upon reasonable, prior written notice to
the Audited Party, during the Audited Party's normal business
hours and no more than once a year) using an independent certified
public accountant retained by the Auditing Party and reasonably
acceptable to the Audited Party, for the sole purpose of verifying
any reports, information and/or payments provided or due hereunder
and verifying compliance with the material terms and conditions of
this Agreement, provided that the scope of such audit shall be
limited to the review and examination necessary to accomplish such
purpose. In the event past audit results indicate discrepancies of
greater than five percent (5%) between fees paid pursuant to the
terms of this Agreement and the fees due, then Licensor will be
entitled to inspect the books and records of Licensee Quarterly.
Such independent certified public accountant shall be bound to
hold all information in confidence except as necessary to
communicate to the Auditing Party the Audited Party's
underpayments, inaccurate reports or information and/or
non-compliance with any material terms or conditions of this
Agreement. The fees and expenses of such inspection shall be paid
by the Auditing Party unless the results of the audit indicate a
difference of at least five percent (5%) between fees paid
pursuant to the terms of this Agreement and fees due, in which
case the Party at fault will pay said reasonable fees and
expenses.
7.16.4 For the avoidance of doubt all reports submitted by Licensee shall
be regarded as Confidential Information.
7.17 EVALUATION LICENSES
In the event that Licensee supplies Jeode Based Products for evaluation
purposes no fee, royalty or charge shall be payable to Licensor.
8 SUPPORT AND MAINTENANCE
Licensor shall provide support and maintenance of the Jeode Software
pursuant to the terms of Licensor's standard support and maintenance
agreement set out at Appendix C.
14
9 LICENSOR WARRANTIES
9.1 PRODUCT WARRANTIES
9.1.1 Licensor warrants that the Jeode Software and Jeode Source Code
will, on delivery and for a period of 90 days thereafter perform
substantially in accordance with and provide the facilities,
functions and capacity set out in the Specifications.
9.1.2 Licensor warrants that no computer viruses, worms, software bombs
or similar items have been, and shall ensure that no such items
will be, introduced by it into the Jeode Software or Jeode Source
Code.
9.2 ADDITIONAL WARRANTIES
9.2.1 Licensor warrants that:
(a) as at the date hereof, except as previously disclosed to
Licensee as detailed in Appendix D there are no liens,
mortgages, encumbrances, charges over or relating to or
affecting the Jeode Software, Jeode Source Code or Licensor
Intellectual Property;
(b) as of the date hereof Licensor has validly applied for,
registered, enforced and maintained all the Licensor
Intellectual Property;
(c) as of the date hereof, there are no disputes, and to
Licensor's knowledge, having made all reasonable enquiries
of its employees, there are no threatened claims or
proceedings relating to the Jeode Software, Jeode Source
Code or Licensor Intellectual Property; and
(d) it owns or has rights to all Licensor Intellectual Property
and that no employees or other person has any right,
interest or title therein.
10 INTELLECTUAL PROPERTY RIGHTS
10.1 OWNERSHIP OF LICENSOR INTELLECTUAL PROPERTY
Subject to the Licensee's ownership of all Intellectual Property Rights
in enhancements to the Jeode Software as described in Clauses 4.1.4 and
4.1.6 nothing in this Agreement shall confer in Licensee any right of
ownership in Licensor Intellectual Property. At no time during or after
the term of this Agreement shall Licensee use the rights conferred by
Licensor under this Agreement as a basis to (i) challenge or assist
another to challenge Licensor's rights in and to Licensor Intellectual
Property or (ii) use Licensor Intellectual Property in connection with
any of its products or services other than in accordance with this
Agreement.
10.2 OWNERSHIP OF LICENSEE INTELLECTUAL PROPERTY
Nothing in this Agreement shall confer on Licensor any right of ownership
in Licensee Intellectual Property. At no time during or after the term of
this Agreement shall Licensor use the rights conferred by Licensee under
this Agreement as a basis to (i) challenge or assist another to challenge
Licensee's rights in and to Licensee Intellectual Property
15
or (ii) use Licensee Intellectual Property in connection with any of its
products or services other than in accordance with this Agreement.
10.3 PROTECTION OF INTELLECTUAL PROPERTY
10.3.1 In the event that the either Party becomes aware of any
infringement, misappropriation, threatened misappropriation or any
other violation by a third party with respect to the other Party's
Intellectual Property, it shall promptly notify the other Party.
If the use of any part of Licensor Intellectual Property is, or in
the reasonable opinion of Licensee and Licensor is likely to
become an infringement of the rights of another person, Licensor
shall, at its option but upon notice to Licensee:
(a) replace the relevant Licensor Intellectual Property with a
comparable non-infringing product provided the product
complies with the relevant Specification; or
(b) procure for Licensee the right to continue using and
exploiting the relevant Licensor Intellectual Property
pursuant to the licenses and rights granted in this
Agreement.
10.4 If Licensor wishes to take a license in relation to any Licensee
Intellectual Property then the Parties shall at that stage enter into
negotiations relating to the applicable license terms.
11 WARRANTIES AND REPRESENTATIONS OF THE PARTIES
11.1 WARRANTIES OF LICENSOR
Licensor represents and warrants to Licensee that:
11.1.1 ORGANIZATION
Licensor is a corporation duly organised and validly existing
under the laws of Delaware, and has the corporate power and
authority to enter into and perform this Agreement.
11.1.2 PERMITS; APPROVALS
Licensor holds all licenses, permits, certifications and other
authorisations, the absence of which would have a material adverse
effect on its financial condition or business, and there has been
no default or violation under any such authorisation and there is
no proceeding or investigation that is pending or, to Licensor's
knowledge, threatened under which any such authorisation may be
revoked, terminated or suspended.
11.1.3 AUTHORIZATION
All corporate action on the part of Licensor necessary for the
authorization, execution and delivery of this Agreement and for
the performance of all of its obligations hereunder and thereunder
has been taken, and this Agreement when fully executed and
delivered, shall constitute a valid, legally binding and
enforceable obligation of Licensor.
16
11.1.4 GOVERNMENTAL AND OTHER CONSENTS
No consent, authorisation, license, permit, registration or
approval of, or exemption or other action by, any governmental or
public body or authority, or any other person, is required on the
part of Licensor in connection with Licensor's execution, delivery
and performance of this Agreement, or if any such consent is
required, Licensor has satisfied the applicable requirements.
11.1.5 EFFECT OF AGREEMENT
Licensor's execution, delivery and performance of this Agreement
in accordance with its terms will not (i) violate any judgment,
order, writ, injunction or decree of any court applicable to
Licensor, (ii) have any effect on the compliance of Licensor with
any applicable licenses, permits or authorisations which would
materially and adversely affect Licensor, (iii) result in the
breach of, give rise to a right of termination, cancellation or
acceleration of any obligation with respect to (presently or with
the passage of time), or otherwise be in conflict with any term
of, or affect the validity or enforceability of, any agreement or
other commitment to which Licensor is a party and which would
materially and adversely affect Licensor or (iv) result in the
creation of any lien, pledge, mortgage, claim, charge or
encumbrance upon any assets of Licensor.
11.1.6 LITIGATION
As at the date of this Agreement, there are no actions, suits or
proceedings pending or, to Licensor's knowledge, threatened,
against Licensor before any court or governmental agency which
question Licensor's right to enter into or perform this Agreement,
or which question the validity of this Agreement.
11.1.7 SERVICES
All services to be provided to Licensee pursuant to the terms of
this Agreement will be provided with all reasonable skill and care
and in accordance with best industry practices.
11.2 WARRANTIES OF LICENSEE
Licensee represents and warrants to Licensor that:
11.2.1 ORGANIZATION
Licensee is a corporation duly organised and validly existing
under the laws of Delaware, and has the corporate power and
authority to enter into and perform this Agreement.
11.2.2 AUTHORIZATION
All corporate action on the part of Licensee necessary for the
authorization, execution and delivery of this Agreement and for
the performance of all of its obligations hereunder has been
taken, and this Agreement when fully executed and delivered, shall
constitute a valid, legally binding and enforceable obligation of
Licensee.
17
11.2.3 GOVERNMENTAL AND OTHER CONSENTS
No consent, authorisation, license, permit, registration or
approval of, or exemption or other action by, any governmental or
public body or authority, or any other person, is required on the
part of Licensee in connection with Licensee's execution, delivery
and performance of this Agreement, or if any such consent is
required, Licensee has satisfied the applicable requirements.
11.2.4 LITIGATION
As at the date of this Agreement there are no actions, suits or
proceedings pending or, to Licensee's knowledge, threatened,
against Licensee before any court or governmental agency which
question Licensee's right to enter into or perform this Agreement
or which question the validity of this Agreement.
11.3 NO IMPLIED WARRANTIES
EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE ARE NO WARRANTIES,
GUARANTEES, CONDITIONS, COVENANTS OR REPRESENTATIONS BY THE OTHER PARTY
OTHER THAN AS EXPRESSLY PROVIDED HEREIN AND THAT THE EXPRESS WARRANTIES
SET OUT IN THIS AGREEMENT ARE IN LIEU OF ANY WARRANTIES AS TO FITNESS FOR
A PARTICULAR PURPOSE OR OTHER ATTRIBUTES, WHETHER EXPRESS OR IMPLIED (IN
LAW OR IN FACT), ORAL OR WRITTEN.
12 INDEMNIFICATION
12.1 Licensor shall indemnify and hold harmless Licensee and its Affiliates,
and all of their respective employees, officers, contractors, directors,
shareholders, legal representatives, agents, successors and assigns (the
"Licensee Indemnified Parties"), from any liabilities, costs, judgements
or expenses (including attorneys' fees and court costs) losses, claims
and damages incurred or suffered by them resulting from the breach by
Licensor of any of its representations and warranties in this Agreement.
Licensee shall indemnify and hold harmless Licensor and its Affiliates,
and all of their respective employees, officers, contractors, directors,
shareholders, legal representatives, agents, successors and assigns (the
"Licensor Indemnified Parties"), from any liabilities or expenses
(including attorney's fees and expenses) incurred by them resulting from
any breach by Licensee of any of its representations and warranties in
this Agreement.
12.2 Licensor shall indemnify and hold harmless Licensee Indemnified Parties
from and against any and all liabilities, losses, damages, claims,
judgments, costs and expenses (including reasonable attorneys' fees and
court costs) which Licensee Indemnified Parties may incur, suffer or be
required to pay based on a claim that: (i) Licensor does not have
sufficient right, title and interest in Licensor Intellectual Property to
grant the rights and licenses granted to Licensee hereunder; or (ii)
Licensor's Intellectual Property infringes any Intellectual Property or
misappropriates any proprietary right of any third party; provided,
however, that Licensor shall have no such duty to indemnify to the extent
such claim is based on (a) any unauthorised modification to Licensor
Intellectual Property made by Licensee in breach of this Agreement; (b)
Licensee's use of Licensor Intellectual Property except as permitted
under this Agreement; (c) any breach of Licensee's obligations under this
Agreement.
18
13 LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE NEITHER
PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES,
ROYALTIES AND OTHER SUMS (INCLUDING (WITHOUT LIMITATION) PASS THROUGH
PAYMENTS TO SUN OR OTHER THIRD PARTIES AND CHARGES PAID PURSUANT TO
CLAUSE 14.3) PAID TO THE OTHER PARTY PURSUANT TO THE TERMS OF THIS
AGREEMENT.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES
INCLUDING (WITHOUT LIMITATION) LOSS OF PROFIT, OR REVENUE WHATSOEVER EVEN
IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL.
14 OPTION TO PURCHASE
14.1 OPTION TO PURCHASE
[Redacted]
14.2 EXERCISE OF OPTION
14.2.1 Licensee may exercise the Option on notice to Licensor:
(a) at any time after eighteen months from the Commencement
Date upon giving Licensor sixty (60) days notice;
(b) at any time (whether during the period referred to in
Clause 14.2.1(a) or otherwise) if Licensor becomes subject
to any of the circumstances detailed in Clause 16.1.2.
14.2.2 In addition, to Licensee's rights under Clause 14.2.4, if
Licensee, at its sole and absolute discretion, wishes to exercise
the Option for any reason (including but not limited) reasons
relating to price, performance, features or quality, then Licensee
shall give notice stating cause for such notice. The notice shall
be for a period of sixty (60) days and shall to the extent
possible recommend a cure. The acceptance of any cure action shall
be at the sole and absolute discretion of Licensee.
14.2.3 In addition to Licensee's rights under Clause 14.2.4, at
Licensee's sole and absolute discretion the notice given may have
immediate effect or state a period of sixty (60) days. If the
Notice is for sixty days (or otherwise) Licensor may make
representations to Licensee regarding the exercise of Option.
14.2.4 At such time as the Option is exercised Licensor will provide
Licensee with a written notice setting out Licensor's position and
circumstances in relation to the matters covered in the warranties
given in Clause 9.2.
19
14.2.5 If Licensee exercises the Option pursuant to Clause 14.2.1(a) and
the reason is Licensee believes Licensor is in default under this
Agreement Licensor will have sixty (60) days to remedy the default
before Licensee can exercise the Option.
14.3 PURCHASE PRICE
[Redacted]
14.3.1 [Redacted]
14.4 CONSEQUENCES OF EXERCISED OPTION
14.4.1 [Redacted]
14.4.2 [Redacted]
14.4.3 Upon the occurrence of the Option Exercise Date, Licensor's
obligations with respect to maintenance and support shall
immediately terminate.
15 CONFIDENTIALITY
15.1 The Parties recognise that, in connection with the performance of this
Agreement, each Party (in such capacity, the "Disclosing Party") may
disclose, or may cause to be disclosed, Confidential Information to the
other Party (the "Receiving Party"). The Receiving Party agrees (i) not
to use any such Confidential Information for any purpose other than in
the performance of its obligations or exercise of its rights under this
Agreement and (ii) not to disclose any such Confidential Information,
except to its Affiliates, employees, consultants, sub-contractors or
representatives who are reasonably required to have the Confidential
Information in connection with discharging obligations or exercising
rights under this Agreement (provided that the Receiving Party shall
ensure that if requested by the Disclosing Party the persons mentioned in
Clause 15.1(ii) execute a confidentiality undertaking at least equivalent
to the terms of this Clause 15) or as may be required by applicable law.
Any Party required by law to disclose Confidential Information shall use
best efforts to provide notice to the other Party prior to the disclosure
of the Confidential Information and, in any event, shall provide written
notice to the other Party within twenty-four (24) hours of providing
Confidential Information pursuant to applicable law. The Receiving Party
agrees to take all reasonable measures to protect the secrecy and
confidentiality of, and avoid disclosure or unauthorized use of,
Confidential Information. This Clause will remain in full force and
effect notwithstanding the termination of this Agreement (howsoever
caused) for a period of ten (10) years following the date of termination
of this Agreement.
15.2 Each Party agrees that its obligations under this Clause 15 are necessary
and reasonable to protect the other Party and its business, that any
violation of these provisions could cause irreparable injury to the other
Party for which money damages may be inadequate, and that, in addition to
any other remedies that may be available in law, the other Party shall be
entitled to obtain injunctive relief against the threatened breach of the
provisions of this Clause 15 without the necessity of proving actual
damages. The Parties agree that the remedies set forth in this Clause 15
are in addition to and in no way preclude any other remedies or actions
that may be available under this Agreement.
20
16 TERMINATION
16.1 Either Party may terminate this Agreement with immediate effect on notice
if:
16.1.1 the other party breaches a material provision of this Agreement
(and if having received sixty days notice, the breaching party
fails to remedy that breach); or
16.1.2 the other party ceases to do business, seeks protection under any
bankruptcy, trust deed, creditors arrangement composition or
arrangement with creditors, becomes or is deemed insolvent and
thereby unable to perform its obligations under this Agreement,
has a receiver, manager, administrator, administrative receiver or
similar officer appointed in respect of the whole or any part of
its assets or business, makes any composition or arrangement with
its creditors, takes or suffers any similar action in consequence
of debt or an order or resolution is made for its dissolution or
liquidation (other than for the purpose of solvent amalgamation or
reconstruction), or any equivalent or similar action or proceeding
is taken or suffered in any jurisdiction.
16.2 Termination of this Agreement, for whatever cause, shall be without
prejudice to the rights or liabilities of either Party accrued prior to
the date of termination and shall not affect either Party's ownership of
its Intellectual Property Rights.
16.3 Clauses 2 (pursuant to Clause 17), 4.1.4, 4.1.6, 9, 10, 11, 12, 13, 14,
15, 17, 18.1, 18.5, 18.6, 18.8 and 18.11 shall survive termination of
this Agreement.
17 CONSEQUENCES OF TERMINATION
17.1 Subject to Clause 17.3 if Licensee terminates this Agreement or this
Agreement expires then:
17.1.1 Licensee shall be entitled to have the benefit of the Licenses
granted in this Agreement in respect of Jeode Based Products
existing at the effective date of termination and shall have the
benefit of such licenses for a transitional period of upto one
year after the effective date of termination;
17.1.2 Licensee shall continue to pay the Transactional License Fees (but
not the Minimum Quarterly Fees) to Licensor provided the
applicable conditions concerning revenue recognition detailed in
Clause 7 apply
so that in all respects Licensee may, amongst other things, continue to
derive revenue from and fully support its customers.
17.2 If Licensor terminates this Agreement pursuant to Clause 16.1 then Clause
17.1 shall apply save that the one year transitional period referred to
in Clause 17.1.1 shall be reduced to six (6) months from effective date
of termination.
17.3 For the avoidance of doubt Clauses 17.1 and 17.2 shall not apply if the
Option Exercise Date occurs before the effective date of termination in
which event the [redacted] license detailed in Clause 14.4.1 shall
survive termination or expiry of this Agreement.
17.4 Notwithstanding termination of this Agreement (howsoever caused) Licensee
shall continue to use Licensor Trademarks pursuant to Clause 2.4 until
either the expiry of
21
twelve (12) months from the effective date of termination or upon
Licensee's next major revision of Jeode Based Products, whichever is the
earlier.
18 GENERAL
18.1 GOVERNING LAW; DISPUTE RESOLUTION
This Agreement shall be governed in all respects by the laws of the
United States of America and the State of California. All disputes
arising under or related to this Agreement or the rights granted
hereunder shall be brought in Superior Court of the State of California
in Santa ▇▇▇▇▇ County or the United States District Court for the
Northern District of California in San Francisco. The Superior Court of
the State of California in Santa ▇▇▇▇▇ County and the United States
District Court for the Northern District of California in San Francisco
shall each have non-exclusive jurisdiction over disputes under this
Agreement. The parties agree that the United Nations Convention on
Contracts for the International Sale of Goods is specifically excluded
from application to this Agreement.
18.2 EXPORT RESTRICTIONS
All software and technical information delivered under this Agreement are
subject to U.S. export control laws and may be subject to export or
import regulations in other countries. Licensee agrees to strictly comply
with all such laws and regulations.
18.3 PUBLICITY
18.3.1 Licensee and Licensor agree to issue a joint press release
announcing the existence of this Agreement (the "PRESS RELEASE").
18.3.2 During the term of this Agreement, neither Party may make or send
a public announcement, communication or circular referring to or
using the other Party's trademarks, or referring to the content of
this Agreement (other than the existence of this Agreement subject
to 18.3.3 below) unless it has first obtained the other Party's
written consent, which will not be unreasonably withheld.
18.3.3 The Licensee shall announce its relationship with the Licensor no
later than 90 days prior to shipment of Jeode Software as
incorporated within Wind River Operating Systems and announce
details concerning any Jeode Based Product no later than 30 days
prior to product launch. The Licensor shall not disclose any of
the aforementioned information before these dates and will use
reasonable endeavours to avoid unauthorised disclosure.
18.4 NOTICES AND OTHER COMMUNICATIONS
Any and all notices, requests, demands and other communications required
or otherwise contemplated to be made under this Agreement shall be in
writing and in English and shall be provided by one or more of the
following means and shall be deemed to have been duly given (i) if
delivered personally, when received, (ii) if transmitted by facsimile, on
the first (1st) business day following receipt of a transmittal
confirmation or (iii) if by international courier service, on the fourth
(4th) business day following the date of deposit with such courier
service, or such earlier delivery date as may be confirmed to the
22
sender by such courier service. All such notices, requests, demands and
other communications shall be addressed as follows:
If to Licensor:
Insignia Solutions, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Attention: Director of Legal Affairs
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Licensee :
Wind River Systems, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇
Attention: Vice-President Intellectual Property and
Legal Affairs]
Fax: [▇▇▇-▇▇▇ ▇▇▇▇
or, in each case, to such other address or facsimile number as a Party
may have furnished to the other Party in writing.
18.5 SEVERABILITY
If any provision in this Agreement shall be found or be held to be
invalid or unenforceable, then the meaning of said provision shall be
construed, to the extent feasible, so as to render the provision
enforceable, and if no feasible interpretation would save such provision,
it shall be severed from the remainder of this Agreement which shall
remain in full force and effect unless the severed provision is essential
and material to the rights or benefits received by any Party. In such
event, the Parties shall use best efforts to negotiate, in good faith, a
substitute, valid and enforceable provision or agreement which most
nearly effects the Parties' intent in entering into this Agreement.
18.6 RELATIONSHIPS OF THE PARTIES
Both parties are independent contractors under this Agreement. Nothing
contained in this Agreement is intended nor is to be construed so as to
constitute the Parties as partners, agents or joint ventures with respect
to this Agreement. Neither party hereto shall have any express or implied
right or authority to assume or create any obligations on behalf of or in
the name of the other party or to bind the other party to any contract,
agreement or undertaking with any third party.
18.7 REFERENCES; SUBJECT HEADINGS
The subject headings of the Clauses in this Agreement are included for
the purpose of convenience of reference only, and shall not affect the
construction or interpretation of any of its provisions.
18.8 FURTHER ASSURANCES
23
The Parties shall each perform such acts, execute and deliver such
instruments and documents, and do all such other things as may be
reasonably necessary to accomplish the transactions contemplated in this
Agreement.
18.9 NO WAIVER
No waiver of any term or condition of this Agreement shall be valid or
binding on a Party unless the same shall have been mutually assented to
in writing by all Parties. The failure of a Party to enforce at any time
any of the provisions of this Agreement, or the failure to require at any
time performance by the other Party of any of the provisions of this
Agreement, shall in no way be construed to be a present or future waiver
of such provisions, nor in any way affect the ability of a Party to
enforce each and every such provision thereafter.
18.10 ENTIRE AGREEMENT; AMENDMENTS
The terms and conditions contained in this Agreement (including the
Schedules and Appendixes) constitute the entire agreement between the
Parties and supersede all previous agreements and understandings, whether
oral or written, between the Parties with respect to the subject matter
of this Agreement. No agreement or understanding amending this Agreement
shall be binding upon any Party unless set forth in a written document
which expressly refers to this Agreement and which is signed and
delivered by duly authorised representatives of each Party.
18.11 BINDING EFFECT; ASSIGNMENT
Licensor shall not assign, transfer or novate its rights or obligations
under this Agreement without obtaining Licensee's prior written consent,
such consent not to be unreasonably withheld. Licensor may assign, novate
or transfer its rights or obligations under this Agreement to an
Affiliate without requiring Licensor's consent provided it notifies
Licensor.
18.12 NO BENEFICIARIES
Nothing herein, express or implied, is intended to or shall be construed
to confer upon or give to any person, firm, corporation or legal entity,
other than the Parties, any interests, rights, remedies or other benefits
with respect to or in connection with any agreement or provision
contained herein or contemplated hereby.
18.13 FORCE MAJEURE
Neither Party shall be held responsible for failure of or delay
hereunder, if such failure of delay is due to act of God or public enemy,
war, government acts or regulations, fire, flood, embargo, quarantine,
epidemic, differences with ▇▇▇▇▇▇▇ (other than the staff of the Party
claiming under this Clause accident, unusually severe, weather or other
cause similar or dissimilar to the foregoing, beyond their reasonable
control (each such event a "Force Majeure").
If the performance of this Agreement by either Party or any obligation
hereunder is prevented, restricted or interfered with by reason of a
Force Majeure event, the Party whose performance is so affected, upon
giving prompt notice to the other Party, shall be excused from such
performance to the extent of such Force Majeure event; provided
24
however, that the party so affected shall take all reasonable steps to
avoid or remove such causes of non performance and shall continue
performance hereunder with dispatch whenever such causes are removed.
18.14 COUNTERPARTS
This Agreement may be executed in any number of counterparts, and each
counterpart shall constitute an original instrument, but all such
separate counterparts shall constitute only one and the same instrument.
IN WITNESS WHEREOF, the Parties have caused their respective duly authorised
representatives to execute this Agreement as of the date hereof.
25
WIND RIVER SYSTEMS, INC.
By: ________________________
Name:
Title:
INSIGNIA SOLUTIONS INC.
By: _________________________
Name:
Title:
26
SCHEDULE 1
JEODE SOFTWARE
JEODE PRODUCT SUMMARY
The Jeode product is Insignia's implementation of Sun's Java(TM) technology,
compatible with specifications published by Sun, and specifically developed to
run Java applications on embedded systems and Internet Appliances.
Jeode allows developers to create reliable, efficient, and predictable Java
applications for these types of device.
COMPONENTS OF JEODE
The Jeode product consists of two components: JeodeRUNTIME(TM)and
JeodeSUITE(TM).
JEODERUNTIME
JeodeRUNTIME is the Jeode product runtime environment on your target platform.
It consists of the Jeode EVM(TM) (Embedded Virtual Machine(TM)), and the
JeodeCLASS(TM) embedded class libraries:
1. JEODE EVM
The Jeode EVM allows you to run Java applications on embedded
systems. The EVM is highly configurable and tunable for the
specific embedded application, with a dynamic compiler for combined
fast execution and a small memory footprint.
2. JEODECLASS
JeodeCLASS embedded class libraries are compatible with Sun's Java
specifications (for Personal or Embedded Java, depending on the
platform).
JEODESUITE
JeodeSUITE is the set of tools provided to help you develop and run Java
applications using your host platform. It consists of JeodeBUILD(TM) and
JeodeDEBUG(TM):
1. JEODEBUILD
JeodeBUILD is the set of build-time tools for editing, compiling, and
browsing the Java application. These tools are available either with
the Jeode product or from third-party suppliers (such as the Sun JDK).
2. JEODEDEBUG
JeodeDEBUG is the set of runtime utilities for examining the behavior
of the Java application and JeodeRUNTIME. JeodeDEBUG tools currently
include JeodeMONITOR. Source-level debuggers are provided by
third-party vendors - for example, Sun's jdb tool. Jeode also supports
standard tool interfaces, as specified by Sun, such as for debugging
(JVMDI/JDWP) and for profiling (JVMPI).
27
CD COMPONENTS
The Jeode product is available as a Binary or a Source CD.
BINARY CD
The binary CD is installable on a Windows NT PC, and provides JeodeSuite tools
for the NT PC, and the JeodeRuntime product for the selected target device.
JeodeRuntime should then be downloaded onto the required target device from the
PC.
So, for example, with the Jeode 1.7 release, binary CD components include:
------------------ ---------------------------------------------------------------------
DIRECTORY NAME CONTAINS
------------------ ---------------------------------------------------------------------
BIN Tools executable wrappers.
------------------ ---------------------------------------------------------------------
DEMO Demonstration java applications and launch files.
------------------ ---------------------------------------------------------------------
DOCS Binary HTML documentation.
------------------ ---------------------------------------------------------------------
INCLUDE Header files (for Sun interfaces such as JVMPI).
------------------ ---------------------------------------------------------------------
LIB JeodeSuite tools.
------------------ ---------------------------------------------------------------------
SAMPLE sample source for JNI invocation.
------------------ ---------------------------------------------------------------------
[TARGET OS NAME] JeodeRuntime for the target device.
------------------ ---------------------------------------------------------------------
SOURCE CD
The source CD contains the source code comprising the Jeode product, and the
tools required to build the binary Jeode product.
So, for example, with the Jeode 1.7 release, source CD components include:
------------------ ---------------------------------------------------------------------
DIRECTORY NAME CONTAINS
------------------ ---------------------------------------------------------------------
ARCHS Target architecture-specific code (for example, for MIPS devices).
------------------ ---------------------------------------------------------------------
BASE Base (common) code for the Jeode product.
------------------ ---------------------------------------------------------------------
DEMO Demonstration java applications and launch files.
------------------ ---------------------------------------------------------------------
DOCS Source HTML documentation.
------------------ ---------------------------------------------------------------------
DOCS-BIN Binary-only HTML documentation.
------------------ ---------------------------------------------------------------------
28
------------------ ---------------------------------------------------------------------
DRL Defines the contents of the Jeode product.
------------------ ---------------------------------------------------------------------
GEN Generated files.
------------------ ---------------------------------------------------------------------
JAVA JeodeRuntime for the target device.
------------------ ---------------------------------------------------------------------
OS Target OS-specific code (for example, for Windows CE OS's).
------------------ ---------------------------------------------------------------------
29
SCHEDULE 2
WIND RIVER OPERATING SYSTEMS
VxWorks and successors
VxWorks AE and successors
pSOS and successors
Wind River Linux and successors
pOSEK and successors
OSEKWorks and successors
IxWorks and successors
30
SCHEDULE 3
TRADEMARKS
Attachment A
Insignia Trademarks
[JEODE LOGO]
[INSIGNIA SOLUTIONS LOGO]
EVM(TM)
Jeode(TM)
Insignia(TM)
Insignia Solutions(TM)
31
SCHEDULE 4
DELIVERABLES
Licensor will agree to provide Licensee with a standard implementation of the
Jeode 1.5.2 (or later if more current release) technology in binary and source
code forms, tested with the Sun EmbeddedJava compatibility test suites, ported
to: 1) the PowerPC processor and running on Licensee's VxWorks v 5.4 operating
system (excluding java.awt) 2) X86 processor and running on the RedHat Linux
version 6.2 operating system, 3) Windows CE ports to the SA, SH and MIPS
processors.
Licensor will agree to provide Licensee with a standard implementation of the
Jeode 1.5.2 (or later if more current release) technology in binary and source
code forms, tested with the Sun PersonalJava compatibility test suites, ported
to: ARM, Hitachi SH, and MIPS processors running on the Windows CE operating
system.
Licensor will provide Licensee with other non-proprietary ports of the Jeode
Software.
32
SCHEDULE 5
SOURCE CODE TRAINING
Insignia Standard Source Training Agenda
LOCATION: Insignia UK
DATE:
------------------------------- -------------------------- --------------------- ---------------------------- ----------------------
MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY
------------------------------- -------------------------- --------------------- ---------------------------- ----------------------
10:00 10:00 10:00 10:00 10:00
Introduction to Insignia Dynamic Adaptive Tools Debugging JeodeAssist
Compiler, DAC 1
Tour of facilities & - Jeode Configurator - Overview of debugging - Support
introduction to departments - Target processor techniques
prerequisites & - Jeode Monitor - Bug reporting
Product Presentation alternatives - EVM debug variants
- debugging - Change submission
- Cuckoo builds - Asserts
- profiling - Taking new code
- Compiler porting - JAB debugger in depth
- deployment
11:30
Architecture Intro 12:00
12:00
DAC 2 - Glue
Q&A
- Base glue
- Host glue
------------------------------------------------------------------------------------------------------------------------------------
33
------------------------------- -------------------------- ----------------------- -------------------------- ----------------------
LUNCH LUNCH LUNCH LUNCH LUNCH
------------------------------- -------------------------- ----------------------- -------------------------- ----------------------
14:00 14:00 14:00 14:00 14:00
Source Intro DAC 3 - GRASP - OS Porting Testing and Certification Q&A
- Masterpack overview - Introduction to GRASP - OSAPI Interface - strategy
- Building overview - Writing GRASP - Porting Jeode - process
definitions
- Development environment - Bytecode Tests
- GRASP test suite
- Build system - TCK
- benchmarking
15:30 16:00
15:30 Garbage Collector Graphics - porting AWT
- design
- OSAPI
- configuration
------------------------------- -------------------------- ----------------------- -------------------------- ----------------------
34
APPENDIX A
JEODE SOURCE DEVELOPMENT LICENCE AGREEMENT
SOURCE DEVELOPMENT LICENSE
(JEODE TECHNOLOGY)
This Source Development License ("SOURCE LICENSE") is entered into this the ____
day of __________________, 2000, ("EFFECTIVE DATE") between Wind River Systems
Inc., a Delaware corporation, with its principal offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("WRS") and ____________________________________, a(n)
____________________________ corporation, with its principal offices at
______________________________________________________________________________
("LICENSEE").
Whereas WRS has entered into certain agreements with its supplier, Insignia
Solutions, Inc. ("INSIGNIA") which gives WRS certain rights and abilities
concerning certain software technology and;
Whereas Licensee desires to receive and use that same software technology;
Therefore the parties hereto agree as follows:
1 DEFINITIONS.
1.1 "DOCUMENTATION" means any and all forms of user materials related to the
Jeode Technology that WRS makes available to Licensee.
1.2 "ERROR" means any failure of the Jeode Technology to conform in all
material respects to the Documentation.
1.3 "ERROR CORRECTION" means an action taken, that, whether in the form of a
modification, addition, procedure, or routine, when taken or observed,
establishes material conformity to the Documentation therefor or
eliminates the practical adverse effect of an Error in the regular
operation of the Jeode Technology.
1.4 "JEODE TECHNOLOGY" means JeodeRuntime plus related software development
tools marketed by Insignia under the name "Jeode" and as licensed to
Licensee on the Licensed O/S.
1.5 "JEODERUNTIME" means, in whole or in part, Insignia's proprietary
implementation of Sun's PersonalJava (pJava) specifications in effect as
of the Effective Date for the Java virtual machine ("Embedded Virtual
Machine" or "EVM") plus related embedded class libraries.
1.6 "INTELLECTUAL PROPERTY RIGHTS" means all worldwide statutory and common
law rights associated solely with (i) patents and patent applications;
(ii) works of authorship including copyrights, copyright applications,
copyright registrations and "moral rights"; (iii) the protection of trade
and industrial secrets and confidential information; and (iv)
35
divisions, continuations, renewals, and re-issuances of the foregoing now
existing, acquired or devised in the future.
1.7 "LICENSED OPERATING SYSTEM" or "LICENSED O/S" means pJava JeodeRuntime
ported to the _________________ operating system.
1.8 "PRODUCT" means any finished product that includes in binary form the
Jeode Technology in whole or in part and is manufactured by or for
Licensee and/or an OEM and sold, licensed, leased, or otherwise put into
service by any of the above. A Product must: (i) have a principal purpose
that is substantially different from that of the Jeode Technology; (ii)
represent a significant functional and value enhancement to the Jeode
Technology; and (iii) not be marketed as a technology that replaces or
substitutes for the Jeode Technology.
1.9 "REFERENCE PLATFORM" means the Jeode Technology as ported to
the___________ platform.
1.10 "SUN" means Sun Microsystems, Inc., its affiliates and its successors and
assigns.
1.11 "TECHNOLOGY COMPATIBILITY KIT" or "TCK" means the test programs,
procedures and/or other requirements, designated by Sun for use in
verifying compliance of the Jeode Technology.
1.12 "TRADE SECRET" means any scientific or technical information, design,
process, procedure, formula, or improvement that is commercially valuable
and secret (in the sense that its confidentiality affords Insignia a
competitive advantage over its competitors). Trade Secrets include
(without limitation) any and all forms of computer code, system design
and specifications, programming sequences, algorithms, flow charts, and
formats pertaining to the Jeode Technology.
1.13 "UPDATE" means new versions of the Jeode Technology developed by or on
behalf of Insignia or WRS, which may include Error Corrections and/or
other modifications, and may be released by WRS from time to time.
2 LICENSE GRANT.
2.1 DELIVERY AND GRANT. Prior to WRS's delivery of the Jeode Technology,
Licensee must have entered into the appropriate Sun Community Source
License Agreement. WRS shall deliver the Reference Platform in the
following format: plus Documentation. WRS grants to Licensee, to the
extent of Insignia's Intellectual Property Rights, *[a worldwide, /
within the territory of ____________, a] non-transferable, non-exclusive,
license to modify, port to different target processor architectures, and
use, during the Term, the Jeode Technology and any Updates Licensee
receives pursuant to separate agreement, solely for the purpose of
researching, developing, maintaining, testing and supporting Product(s).
The preceding development rights include the right to produce up to ten
(10) copies of the Jeode Technology in whole or in part for inclusion
within any prototype(s) for each Product for internal development,
demonstration, or evaluation purposes.
36
2.2 RESTRICTIONS.
2.2.1 Licensee may not modify the Jeode Technology, or any component
thereof, except as reasonably necessary for the exercise of
Licensee's porting rights pursuant to Section 2.1.
2.2.2 Licensee may not port the Jeode Technology to any operating system
other than the Licensed O/S.
2.2.3 Licensee may not make any more than one (1) copy of the Jeode
Technology or Documentation, which copy may be used as a backup
only.
2.2.4 Licensee may not, directly or indirectly, reproduce or distribute
any copies of the Jeode Technology or JeodeRuntime under this
Source License.
2.2.5 Licensee may not sublicense or contract with any third party
regarding the exercise of any rights or obligations contained
within this Source License.
2.3 OWNERSHIP, LICENSE, AND ASSIGNMENT TO INSIGNIA.
2.3.1 Licensee Ports. Subject always to Insignia's Intellectual Property
Rights in the Jeode Technology, Licensee will own all
porting-related modifications ("Licensee Ports") that Licensee
makes to the Jeode Technology. Licensee grants to Insignia a
worldwide, royalty-free, non-exclusive, perpetual, and irrevocable
license, to the extent of Licensee's Intellectual Property Rights
covering Licensee Ports, to use, reproduce, modify, display and
distribute Licensee Ports in any form, including the right to
sublicense such rights. Licensee agrees to deliver such Licensee
Ports, if any, to Insignia no later than Licensee's first
transfer, license, or delivery of such Licensee Port to any third
party.
2.3.2 Licensee Modifications. In the event that Licensee modifies the
Jeode Technology in any manner other than development of a
Licensee Port (for example, any patches, workarounds, bug fixes or
other modifications or enhancements ("Licensee Modification(s)")),
then Licensee shall deliver to WRS: 1) all source code and related
documentation promptly upon the earlier of a) completion of
testing of such Licensee Modification, b) internal deployment
within Licensee, or c) release or delivery to any third party; and
2) Licensee shall, in a timely manner, take all steps reasonably
requested by WRS to effect the full and effective assignment of
ownership of such Licensee Modification to WRS. THIS ASSIGNMENT OF
OWNERSHIP OF LICENSEE MODIFICATION(S) CONSTITUTES AN ESSENTIAL
PART OF THIS SOURCE LICENSE. NO USE OF THE JEODE TECHNOLOGY IS
AUTHORIZED HEREUNDER EXCEPT SUBJECT TO THIS REQUIREMENT.
2.4 WRS Deliverables. To assist Licensee in its exercise of the rights
granted by this Source License, WRS shall, promptly upon completion of
this Source License, provide to Licensee one (1) copy of the Jeode
Technology ported to the *_____________ platform(s) in source code form,
for use as a reference implementation.
37
2.5 License Fee. Licensee's rights under this Source License are expressly
conditioned upon payment in full of the non-refundable development
license fee associated with this license of the Jeode Technology. The
license fee in the amount of * _____________________ ($_____________)
must be paid by Licensee to WRS in advance of WRS's delivery to Licensee
of the Jeode Technology.
3 LIMITED WARRANTY.
3.1 THE JEODE TECHNOLOGY IS PROVIDED UNDER THIS LICENSE "AS IS", AND WRS
EXCLUDES TO THE FULL EXTENT ALLOWED BY APPLICABLE LAWS ALL TERMS,
WARRANTIES, AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THAT THE JEODE
TECHNOLOGY IS FREE OF DEFECTS, MERCHANTABLE, SATISFACTORY, OR FIT FOR A
PARTICULAR PURPOSE. WRS DOES NOT WARRANT THAT THE JEODE TECHNOLOGY WILL
MEET LICENSEE'S REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR
ERROR FREE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF
THIS LICENSE. NO USE OF THE JEODE TECHNOLOGY IS AUTHORIZED HEREUNDER
EXCEPT SUBJECT TO THIS DISCLAIMER.
3.2 NOTE ON JAVA TECHNOLOGY. The Jeode Technology contains support for
programs written in the Java programming language. Java Technology is not
fault tolerant and is not designed, manufactured, or intended for use or
resale as on-line control equipment in hazardous environments requiring
fail-safe performance, such as in the operation of nuclear facilities,
aircraft navigation or communication systems, air traffic control,
certain medical devices, or weapons systems, in which the failure of Java
Technology could lead directly to death, personal injury, or severe
physical or environmental damage. WRS for itself and its supplier
disclaims any express or implied warranties for any such use. If Licensee
uses Jeode Technology and/or JeodeRuntime for such applications, Licensee
will indemnify and hold harmless WRS and its suppliers from any claims,
loss, cost, damage, expense, or liability, including attorneys' fees,
arising out of or in connection with such applications.
4 INTELLECTUAL PROPERTY RIGHTS
4.1 All Intellectual Property Rights in the Jeode Technology and
Documentation provided hereunder, and any copies of the Jeode Technology
and Documentation, are owned by WRS or its suppliers. This Source License
will not affect any other confidential disclosure agreement between the
parties.
4.2 WRS represents and Licensee hereby acknowledges that the Jeode Technology
contains substantial Trade Secrets of WRS. These Trade Secrets have been
entrusted to Licensee for use only as expressly authorized under this
Source License.
4.3 WRS may exercise all rights as it might have at law or in equity for the
protection of its Intellectual Property Rights, including an injunction
enjoining the breach or threatened breach of this Section. Licensee and
WRS agree that, in the event of legal proceedings, the party with
judgment against it will be responsible for the reasonable legal fees and
costs of the other party.
4.4 Licensee's Protective Obligation and WRS Audit Rights. Licensee will use
commercially reasonable efforts, consistent with the practices and
procedures under which Licensee protects Licensee's own most valuable
proprietary information and materials, to protect
38
WRS's Intellectual Property Rights in the Jeode Technology and the
Documentation against any unauthorized or unlawful use, disclosure, or
copying. WRS has the right, at WRS's expense, to audit Licensee's
practices and procedures upon reasonable notice to Licensee and at a time
that is mutually agreeable.
5 CONFIDENTIALITY.
5.1 Confidential Information. "Confidential Information" means any business
or technical information belonging to WRS or Licensee, that is designated
by the disclosing party as "confidential" or "proprietary" regardless of
the form of the disclosure. WRS hereby designates the source code form of
the Jeode Technology and the terms and conditions of this Source License
as WRS's Confidential Information.
5.2 Exclusions. Confidential Information shall not include information that:
(i) is or becomes generally known or available by publication, commercial
use or otherwise through no fault of the receiving party; (ii) is know to
the receiving party at the time of disclosure without violation of any
confidentiality restriction and without any restrictions on the receiving
party's further use or disclosure; (iii) is independently developed by
the receiving party; (iv) is received from a third party not under an
obligation as to disclosure of such information; (v) is permitted for
release or disclosure to any third party by the written prior consent of
the disclosing party; or (vi) is furnished to a third party by disclosure
without imposing similar restrictions on such third party.
5.3 Use and Disclosure Restrictions. For a term of two (2) years from the
last disclosure of Confidential Information, each party will refrain from
using the other party's Confidential Information except as permitted
herein, and will use the same level of care to prevent disclosure of the
other party's Confidential Information that it uses with its own
information of similar sensitivity and importance, but in any event will
not use less than reasonable care to prevent disclosure of the other
party's Confidential Information. However, each party may disclose
Confidential Information of the other party: (i) pursuant to the order or
requirement of a court, administrative agency, or other governmental
body, provided that the receiving party gives reasonable notice to the
disclosing party to contest such order or requirement; (ii) on a
confidential basis to Licensee's parent, subsidiary, and affiliated
companies; and (iii) on a confidential basis to legal or financial
advisors.
6 TERM AND TERMINATION.
6.1 Term. Subject to Section 6.2, the term of this Source License shall be
for a period of *three (3) years, commencing on the Effective Date. Upon
the natural expiration of the first *three (3) year period ("Term" or
"Initial Term" as the context provides), this Source License shall
automatically renew for one (1) year periods ("Term"), unless either
party provides the other party written notice of its desire not to renew
at least ninety (90) days prior to the conclusion of the current Term.
6.2 Termination.
6.2.1 Either party may terminate this Source License, with or without
cause, upon ninety (90) days' written notice to the other party,
except during the first three (3) months of the Initial Term
during which advance written notice of one hundred eighty (180)
days is required.
39
6.2.2 This Source License and the rights granted hereunder will
terminate automatically if Licensee fails to comply with the terms
of this Source License and fail to cure such breach within thirty
(30) days of WRS's notice to Licensee regarding such breach. This
Source License will terminate immediately as contemplated in
Section 7.1 or at WRS's discretion upon any action initiated in
the first instance by Licensee alleging that use or distribution
of the Jeode Technology i) infringes any Intellectual Property
Right owned or controlled by Licensee or ii) is in any way
invalid.
6.2.3 Upon termination of this Source License, Licensee shall
immediately discontinue use of the Jeode Technology, this Source
License and all rights granted hereunder shall cease, and Licensee
shall return or an authorized officer shall certify the
destruction of all copies of the Jeode Technology to WRS.
6.2.4 Survival. The termination of this Source License will not prevent
the continuation of any other agreement Licensee may have with
WRS. Provisions in this Source License that should remain in
effect beyond termination, because of their nature, will survive.
These provisions include, without limitation, Sections 2.3, 3, 4,
5, 6.2, 7, 8.4, 8.5, and 8.6.
7 LIABILITY.
7.1 Infringement.
7.1.1 WRS's Obligation. Should the Jeode Technology or any component of
the Jeode Technology, as delivered by WRS to Licensee, become the
subject of an Intellectual Property Right infringement claim, WRS
may, at its sole option, (i) procure the rights necessary for
Licensee to continue using the Jeode Technology, (ii) modify the
Jeode Technology so that it is no longer infringing, or (iii)
terminate Licensee's right to use the Jeode Technology,
immediately upon written notice, and refund to Licensee the fees
that Licensee has paid under this Source License. WRS will have no
obligation under this Section 7.1 with regard to infringement or
misappropriation arising out of (i) modifications to the Jeode
Technology that were not done by WRS; (ii) the development, use or
distribution of the Products; and (iii) the use of the Jeode
Technology in combination with hardware or software not provided
by WRS.
7.1.2 Licensee's Obligation. Should any Licensee Port or Licensee
Modification or any component thereof, as delivered by Licensee to
WRS, become the subject of an Intellectual Property Right
infringement claim, Licensee must either (i) procure the rights
necessary for WRS to continue using such port or modification
without cost to WRS, or (ii) modify the same so that it is no
longer infringing.
7.2 LIMITATION OF LIABILITY. TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW,
(i) WRS'S LIABILITY TO LICENSEE FOR CLAIMS RELATING TO THIS SOURCE
LICENSE AND (ii) LICENSEE'S LIABILITY TO WRS FOR CLAIMS RELATING TO THIS
SOURCE LICENSE, WHETHER FOR BREACH OR IN TORT, SHALL BE LIMITED TO ONE
HUNDRED PERCENT (100%) OF THE AMOUNT HAVING THEN ACTUALLY BEEN PAID BY
LICENSEE TO WRS FOR ALL DEVELOPMENT COPIES LICENSED HEREUNDER,
40
IF ANY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
ANY DAMAGES RELATING TO, RESPECTIVELY, THE JEODE TECHNOLOGY AND LICENSEE
MODIFICATIONS THAT HAS BEEN MODIFIED BY THE RECEIVING PARTY, TO THE
EXTENT THAT ANY CLAIMS RELATE TO SUCH MODIFICATION. IN NO EVENT WILL
EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS SOURCE
LICENSE (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, USE, DATA, OR
OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES AND ON ANY THEORY OF
LIABILITY, WHETHER IN AN ACTION FOR CONTRACT, STRICT LIABILITY OR TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE
OF ESSENTIAL PURPOSE OF ANY REMEDY.
8 MISCELLANEOUS.
8.1 Export/Import Laws. The Jeode Technology is subject to U.S. export
control laws and may be subject to export or import regulations in other
countries. Licensee agrees to comply strictly with all such laws and
regulations and acknowledge that Licensee has the responsibility to
obtain such licenses to export, re-export, or import as may be required
after delivery to Licensee.
8.2 Intellectual Property Protection. Because this Source License will be
providing Licensee with Sun source code, and due to limited intellectual
property protection and enforcement in certain countries, Licensee agrees
not to redistribute the Jeode Technology or any component thereof in
source form to any country that is not on the list of identified
countries, which list is presently available on the Internet at
▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇.▇▇▇▇.
8.3 Publicity. Licensee agrees that WRS may use Licensee's name and may
disclose that Licensee is a licensee of WRS's products in WRS's standard
advertising, press, promotion and similar public disclosure with respect
to the Jeode Technology; provided, however that any such public
disclosure shall not indicate that Licensee in any way endorses any WRS
product, without prior written permission from Licensee. Licensee agrees
that, upon Licensee's public announcement of any product designed with or
containing the WRS products, WRS may publicly disclose the nature of the
WRS involvement in said project if the parties have not already agreed to
a joint announcement or press release.
8.4 Assignment. Licensee may not assign this Source License or any of
Licensee's rights hereunder, (including by way of merger or acquisition
unless Licensee is the surviving entity) or delegate any of Licensee's
duties hereunder, without WRS's prior written consent. Any attempted
assignment in violation of this provision will be void.
8.5 Severability. If any provision of this Source License is held to be
unenforceable, such provision shall be reformed only to the extent
necessary to make it enforceable and all other terms shall continue in
full force and effect.
8.6 Governing Law and Jurisdiction. This Source License is governed by the
laws of the United States and the State of California, without regard for
choice of law rules.
41
8.7 Entire Agreement. This Source License represents the complete agreement
concerning the subject matter hereof.
IN WITNESS WHEREOF, the parties have caused this Source License to be
executed by their authorized representatives as of the Effective Date.
ON BEHALF OF WIND RIVER SYSTEMS, INC. ON BEHALF OF LICENSEE
By: ____________________________ By: ____________________________
(Signature) (Signature)
Name: ____________________________ Name: ____________________________
(Printed) (Printed)
Title: ____________________________ Title: ____________________________
Date: ____________________________ Date: ____________________________
42
APPENDIX B
PRODUCT ROAD MAP
[REDACTED]
43
APPENDIX C
SUPPORT AND MAINTENANCE
1 SUPPORT
(a) Licensor offers support services that are designed to help
Licensee's engineers proceed more efficiently during their
Jeode-based development projects. These services include standard
product support for the current version of the Jeode technology
that entitles Licensee's engineers access to the JeodeAssist
web-based support system facilities. This on-line system is used
to track all outstanding customer cases, and generally serves as a
central repository for all issues and their current disposition.
(b) Licensor will provide technical support for the standard
deliverables (described previously) and the NRE and consulting
services described below, directly to Licensee's engineers, under
the terms of an active annual maintenance agreement.
(c) Licensor will agree to respond to all support cases submitted by
Licensee using the JeodeAssist web-based support system within
Licensor's standard response guidelines and time scales (see
Attachment 1 for details).
(d) Licensor will agree to follow its standard escalation process for
all of Licensee's high priority outstanding support cases that are
not resolved according to the standard guidelines for resolution.
(e) Licensor will provide Licensee access to a monthly support case
report.
(f) Additional extended or special support services are available on a
case-by-case basis. See the NRE and Consulting section below for
examples of these services.
2 MAINTENANCE AND UPDATES
(a) Licensor offers a maintenance and update service that provides for
access to any regularly scheduled updates to the standard product
deliverables (maintenance and update services for any custom NRE
deliverables is as described in a Statement of Work). These
updates generally include fixes to product defects and minor
enhancements to the current version of the Jeode technology. In
addition, the maintenance service provides a mechanism to provide
corrections to critical product defects on an as-needed basis.
(b) Licensor will use good commercial efforts to fix all critical
software defects within a reasonable amount of time after they are
isolated and can be duplicated by Licensor.
(c) Licensor will provide Licensee with updates to the standard Jeode
product when they are generally made publicly available.
(d) Licensor will update Licensee with full source code releases on
their supported reference platforms as soon as they are generally
made publicly available.
44
(e) Licensor will provide Licensee reasonable access to those portions
of source code on Licensor's Source Code Control System that are
relevant to the Jeode technology exclusively optimized for
Licensee.
3 NRE AND CONSULTING
(a) Licensee may request special fee-based engineering services from
Licensor related to the Jeode technology, including such services
as; ports of Jeode to other processor architectures, Jeode
enhancements, non-standard support escalation, direct end customer
support, on-site support, product integration and testing, or
application consulting. Upon receipt of such written requests,
Licensor will respond with a written Statement of Work (SOW)
describing the work to be completed, estimated amount of
engineering man days required to complete the work, and a daily
rate for the requested work. Once both parties agree to the SOW,
and work has begun, Licensee may submit a written Engineering
Change Request (ECR) for changes and/or additions to the original
effort. Licensor will determine what impact the ECR will have on
the original estimates for the project and provide a new written
estimate.
(b) In addition to other requests, Licensor will respond to Licensee's
specific future requests for: a) optimizing the Jeode technology
for Licensee's VxWorks operating system, b) providing extended
support to Licensee for its creation of new ports of the Jeode
technology to other processor architectures running on the VxWorks
operating system, and/or c) Licensor to develop new ports of the
Jeode technology to other processor architectures.
4 LICENSEE'S RESPONSIBILITIES
(a) TECHNICAL LIAISONS
Licensee will designate up to two (2) of their software engineers
per Licensee site who will be responsible for logging all support
cases with Licensor via JeodeAssist, and generally serve as
technical liaisons for all problem resolution.
(b) PROBLEM REPORTING
(i) Licensee will register all bug fix and enhancement requests
with Licensor directly via their two technical liaisons
using the JeodeAssist web-based problem reporting facility.
(ii) Licensee will determine the priority of all outstanding
support cases.
(c) SUPPORTING ITS CUSTOMERS
Licensee will be responsible for direct support to its customers
with back-up support provided by Licensor to Licensee's technical
liaisons.
(d) ENGINEERING CHANGE REQUESTS
Licensee will be responsible for providing all necessary
information to properly assess any NRE or consulting work
requested. Licensor will prepare an SOW based on the information
provided, and any changes to an agreed work statement will require
a written Engineering Change Request from Licensee. Licensor will
45
determine what impact the ECR may have on the original estimates
for the project.
(e) ROYALTY REPORTING AND AUDITS
Licensee will agree to submit quarterly reports, with payment,
including customer specific details, for all products shipped
incorporating Jeode technology during the previous quarter within
thirty (30) days following the last day of each calendar quarter.
Licensor will have the right to audit such reports, for proper
reporting and associated payments.
(f) LOANER EQUIPMENT
If Licensee should require any engineering work, which in
Licensor's opinion will require the use of equipment from
Licensee, Licensor will make a reasonable request for the
necessary equipment to complete and support the work. Licensee
will agree to provide the equipment specified for use during the
development and support phase of the project. Licensee will be
responsible for its proper maintenance, including enhancements and
updates, as necessary to support Licensor's efforts to complete
the work.
(g) INTEGRATION ASSISTANCE
Licensor will dispatch a full time engineer to Licensee for forty
five (45) contiguous days, or for over no more than two (2) time
periods, to assist Licensee in integrating Jeode with Licensee's
branded OSes O/Ses and related products.
Subsequent to this initial integration period(s), said engineer
will be on call to Licensee for technical assistance & coding for
an additional forty five (45) days.
Additional fees may also be required for items such as equipment,
materials, travel and lodging as necessary to facilitate the
integration work.
ENGINEERING SUPPORT MODEL FOR SOURCE CUSTOMERS AND WIND RIVER SYSTEMS
1 SOURCE CODE RELEASE POLICY
(a) Insignia would only update source customers with a full source
code release on their supported reference platform when Insignia
updates and releases its own reference platform release. This is
typically every 6 to 12 months.
(b) Insignia supplies a single platform to source customers as the
supported reference platform. This release is certified on a
specific named piece of hardware supplied by the source customer.
(c) Support is only provided on the reference platform as described
above for the current release of Jeode and the previous release.
2 SOURCE CODE CHANGE REQUEST REPORTING (BUGS AND ENHANCEMENT REQUESTS)
(a) All bugs and request for enhancements will be registered with
Insignia via the source customer's support group. This includes
both bugs and requests for
46
enhancements originating from the source customer's development
team and from the end users.
(b) The source customer will nominate 2 engineers from their support
group who will be responsible for logging support cases with
Insignia.
(c) All support cases will be logged with Insignia via the JeodeAssist
web based support problem reporting facility.
(d) All support cases will be prioritized by the source customer's
support group according to Insignia's standard support case
prioritization guidelines as detailed in section 4.
(e) The response times for source customer cases will be in accordance
with Insignia's standard support response timescales as detailed
in section 4.
(f) In the event that a case requires escalation the process will be
in the following order:
(i) The Source Customer to increases the case priority
(ii) The Source Customer's support manager contacts Insignia's
support manager directly
(iii) The Source Customer's senior business manager contacts
Insignia's senior business manager
(g) Insignia undertakes to provide a monthly support case report for
major support customers including case statistics and response
time metrics.
3 THE BUG FIX/DEVELOPMENT ASSISTANCE PROCESS
The following scenarios are envisaged:
(a) Insignia receives a problem report and a proposed fix from the
source customer:
(i) Insignia either accepts a fix and incorporates into
Insignia Main development line or issues Insignia `approved
fix'. This will go through the Insignia's Java Change
Notification (JCN) process
(ii) Source code fixes/changes will be identified by a Insignia
JCN number
(iii) JCN updates will be issued to source code customers for
their specific reference platform on a regular basis.
(b) Insignia receives a problem report that can be verified on the
reference platform:
(i) Should be verified by the source customer's support group
on the reference platform before logging a case with
Insignia
(ii) Should be submitted with results of verification + test
applications
(iii) Insignia identifies problem and issues a `test' fix
47
(iv) The `test' fix is verified by the source customer/their
customer
(v) If the fix is verified Insignia issues a JCN and
incorporates change into the main line
(c) Insignia receives a bug report that can not be verified on the
reference platform:
(i) In order to obtain support from Insignia the source
customer must send Insignia the source code, object code
and build environment for the specific platform along with
hardware on which the problem can be reproduced. The case
details should be submitted with results of verification +
test applications.
(ii) The source customer will be charged for the support time to
resolve the problem at standard Insignia engineering rates.
This includes full expenses for on-site customer visits.
4 STANDARD INSIGNIA MAINTENANCE AND SUPPORT GUIDELINES
(a) General Classification of Difficulties. Upon Acceptance, the
source customer shall provide First Level Support to all
Distributors and End Users. Insignia shall provide support to
source customers only, and agrees to use reasonable business
efforts to rectify support cases for the Product when identified,
classified and reported by the source customer on JeodeAssist web
based support problem reporting facility:
Priority Codes (based in customer impact)
P1 - Critical - the fix is usually a patch or workaround
P2 - Urgent - the fix is usually a patch or workaround
P3 - Normal - these bugs normally get fixed in maintenance
releases or the next major release, only rarely do they get issued
as patches
P4 - Low - Address possibly for the next release - could be a
patch release. Keep these on record in case we want to fix them
later, or the number of customers reporting on the problem becomes
significant and we decide to increase the priority.
(b) The final classification of Priority Codes for each Software
Change Request will be mutually agreed among Insignia and the
source customer.
(c) Priority Codes
---------------------------------------- -----------------------------------------------------
PRIORITY CODES
---------------------------------------- -----------------------------------------------------
LICENSEE CLASSIFICATION CRITERIA
---------------------------------------- -----------------------------------------------------
P1 Critical A `Fatal' or `Showstopper' condition.
----------------------------------------------------------------------------------------------
48
-----------------------------------------------------------------------------------------------
Precludes all useful work from being done, a problem
in critical functionality without a workaround,
emergency condition that causes the end user to be
unable to use the program and that has a critical
impact on such end user's operations.This condition
requires an immediate solution.
---------------------------------------- -----------------------------------------------------
P2 Urgent A `Severe Impact' condition. Precludes one or more
major functions from being performed. A problem in
critical functionality with a workaround, a
condition that severely restricts the End User's
operation but such user can continue to use the
program, or a condition, which makes the
performance of any or more functions difficult.
This problem cannot be readily circumvented or
avoided on a temporary basis by the End User and
requires a rapid solution.
---------------------------------------- -----------------------------------------------------
P3 Normal A `Degradation' condition. Disables one or
more non-essential functions. Problem in a
non-critical functionality without a
workaround, a limited condition that cannot
be readily circumvented or avoided on a
temporary basis by the End-User.
---------------------------------------- -----------------------------------------------------
P4 Low A `Minimal Impact' condition. Any condition, which
requires rectification and is not classified as P1,
P2, or P3. A problem in a non-critical
functionality with a workaround, a minor condition
that can be readily circumvented or avoided on a
temporary basis by the End User. Insignia shall
have no obligation to rectify code modified or
provided by anyone other than Insignia.
---------------------------------------- -----------------------------------------------------
(d) Response to Problem Report. Upon receiving a Problem Report from
source customer's designated representative(s), Insignia shall
respond on a reasonable business effort basis as follows:
-------------------------------------------------------------------------------------------------------------
INSIGNIA'S RESPONSE SCHEDULE
-------------------------------------------------------------------------------------------------------------
Classification First Level Final Level
------------------------------------- ----------------------------------- -----------------------------------
49
-------------------------------------------------------------------------------------------------------------
P1 Critical Continuing effort until relief Within 90 days
provided
------------------------------------- ----------------------------------- -----------------------------------
P2 Urgent 10 work days 100 days
------------------------------------- ----------------------------------- -----------------------------------
P3 Normal 15 work days 120 days
------------------------------------- ----------------------------------- -----------------------------------
P4 Low 30 work days 180 days
------------------------------------- ----------------------------------- -----------------------------------
Insignia's response for each difficulty classification will be:
-------------------------------------------------------------------------------------------------------------
RESPONSE LEVEL
------------------------------------- -----------------------------------------------------------------------
First Level Patch, work around, temporary fix
(where possible) or unofficial update
release.
------------------------------------- -----------------------------------------------------------------------
Final Level Official fix, update or major
release (i.e., the revisions have gone
through the standard Insignia Final
release testing procedures).
------------------------------------- -----------------------------------------------------------------------
Final level releases will be provided no more that once every six months.
(e) Final level Tests. Insignia shall conduct tests on the Final Level
Response sufficient to demonstrate that each reported difficulty
has been rectified and that the Product continues to meet the
Specifications in all material aspects. The results of such tests
shall be delivered to the source customer along with modified
source and object code for the Product. The source customer shall
have thirty (30) business days following receipt of any Final
Level Response to either notify Insignia of its Acceptance or
provide Insignia with a written report (including test results and
test data concerning the problem) specifying any and all
deficiencies requiring further response by Insignia. Failure by
source customer to provide any such notice by the end of the
thirty- (30) business day period shall be construed as Acceptance.
(f) Further Response. Within thirty (30) business days of receipt of a
written report pursuant to Section 4.3, Insignia shall modify the
Product to rectify any reported deficiencies.
(g) Acceptance or Rejection. Within thirty (30) business days
following receipt of all modifications performed pursuant to
Section 4.4, the source customer shall either accept or reject the
modified Product by written notice to Insignia. Failure to give
such notice by the end of the said thirty- (30) business day
period shall be construed as Acceptance. In the event of
rejection, such written notice shall specify all residual
deficiencies. The source customer will not unreasonably reject
delivered modifications of the Product.
50
APPENDIX D
DISCLOSED RESTRICTIONS, ENCUMBRANCES OVER JEODE SOFTWARE
Quantum Corporation, as security for a loan to the Licensor, has a
security interest in all intellectual property of the Licensor. The loan
is convertible into equity on December 31, 2000 and Quantum has
informally indicated its intent to convert.
51
APPENDIX E
PROFORMA LEAD SHEET
Date:
Source:
Company:
Address:
City:
State:
ZIP:
Country:
Contact:
Telephone:
E-mail:
Comments:
52
APPENDIX F
EXAMPLE OF FEE ACCRUALS AND PAYMENTS
TRANSACTIONAL FEES MINIMUM QUARTERLY FEES Actual Payment Credit Accrual Total
for Quarter (estimated) to Licensor For Quarter Accrued Credits
----------------------------------------------------------------------------------------------------------------------
Quarter 1 $XXXX $XXXX $XXXX $XXXX $XXXX
Quarter 2 $XXXX $XXXX $XXXX $XXXX $XXXX
Quarter 3 $XXXX $XXXX $XXXX $XXXX $XXXX
Quarter 4 $XXXX $XXXX $XXXX $XXXX $XXXX
Quarter 5 $XXXX $XXXX $XXXX $XXXX $XXXX
Quarter 6 $XXXX $XXXX $XXXX $XXXX $XXXX
53