EXHIBIT 10.4
SOFTWARE DEVELOPMENT
AND LICENSE AGREEMENT
AUGMENT SYSTEMS INCORPORATED
POLYBUS SYSTEMS CORPORATION
AS OF AUGUST 1, 1996
TABLE OF CONTENTS
INTRODUCTION PAGE
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1. SOFTWARE DEVELOPMENT..................................................................... 1
2. DELIVERY, TESTING AND ACCEPTANCE......................................................... 1
(a) Delivery...................................................................... 1
(b) Testing....................................................................... 2
(c) Acceptance.................................................................... 2
3. MODIFICATIONS............................................................................ 2
4. PROJECT MANAGEMENT....................................................................... 2
(a) Progress Reviews.............................................................. 2
(b) Status Reports................................................................ 2
(c) Project Staffing.............................................................. 3
5. WARRANTY; MAINTENANCE AND SUPPORT; TRAINING; ENHANCEMENTS................................ 3
(a) Warranty...................................................................... 3
(b) Maintenance and Support....................................................... 3
(c) Support and Training.......................................................... 4
(d) Enhancements and Modifications................................................ 4
6. OWNERSHIP OF SOFTWARE.................................................................... 4
7. GRANT OF LICENSE AND PAYMENTS OF ROYALTIES............................................... 5
(a) The License................................................................... 5
(b) The Binary License............................................................ 5
(c) The Source License............................................................ 6
(d) Prepaid Royalties............................................................. 6
8. REPRESENTATIONS AND WARRANTIES........................................................... 6
(a) No Conflict................................................................... 6
(b) Ownership..................................................................... 6
(c) Functional Specifications..................................................... 7
(d) Conformity, Performance and Compliance........................................ 7
(e) No Restrictions on Software. ................................................. 7
9. INDEMNIFICATION.......................................................................... 7
10. LIMITATIONS............................................................................. 8
11. CONFIDENTIALITY......................................................................... 8
12. NONCOMPETITION.......................................................................... 9
13. TERM.................................................................................... 10
14. TERMINATION............................................................................. 10
15. MISCELLANEOUS PROVISIONS................................................................ 11
(a) Waiver........................................................................ 11
(b) Governing Law................................................................. 11
(c) Force majeure................................................................. 11
(d) Severability.................................................................. 11
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INTRODUCTION PAGE
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(e) No Assignment................................................................. 11
(f) Required Approvals............................................................ 11
(g) Amendments in Writing......................................................... 11
(h) Counterparts.................................................................. 12
(i) Notice........................................................................ 12
(j) Headings...................................................................... 12
(k) Schedules and Exhibits........................................................ 12
(l) Authority..................................................................... 12
(m) Entire Agreement.............................................................. 12
(n) Legal and Equitable Remedies.................................................. 12
SCHEDULE A - PROJECT DESCRIPTION
SCHEDULE B - TIMETABLE AND PREPAID ROYALTY PAYMENTS
SCHEDULE C - COMPLETION CRITERIA
SCHEDULE D - ROYALTY SCHEDULE
SCHEDULE E - SOFTWARE COMPONENT OWNERSHIP
SCHEDULE F - SOFTWARE MAINTENANCE AND SUPPORT FEES
SCHEDULE G - EXAMPLES OF THE PRINTING AND PUBLISHING INDUSTRY APPLICATIONS
EXHIBIT A - FIREBIRD FILE MANAGER SOFTWARE SPECIFICATION AND PROJECT PLAN
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SOFTWARE DEVELOPMENT
AND LICENSE AGREEMENT
THIS AGREEMENT is made and entered into as of August 1, 1996 between
Augment Systems, Incorporated ("AUGMENT"), a Delaware corporation having its
principal place of business in Westford, Massachusetts and Polybus Systems
Corporation ("POLYBUS"), a Delaware corporation having its principal place of
business in Hudson, New Hampshire.
INTRODUCTION
AUGMENT is in the business of designing, developing, manufacturing and
selling super servers for the printing and publishing market. POLYBUS
specializes in software development and has the ability and expertise to develop
file management software. Both parties desire to establish a relationship for
the purpose of developing the software necessary for AUGMENT's hardware products
utilizing complementary skills and strengths which each party may provide.
The purpose of this Agreement, therefore, is to set forth the terms and
conditions upon which POLYBUS agrees with AUGMENT to develop, integrate and
deliver the Software (as defined in Schedule A hereto) for a File Management
Software System which will be fully integrated into the hardware products of
AUGMENT for sale as a combined hardware/software product (the "System").
In consideration of the mutual covenants set forth in this Agreement,
and other good and valuable consideration, the parties agree as follows:
1. SOFTWARE DEVELOPMENT.
a) POLYBUS agrees to undertake and complete the development, integration, and
delivery of the Software which meets the functional specifications and
requirements included on Schedule A attached hereto (the "Functional
Specifications") in accordance with the timetable set forth in Schedule B
hereto. POLYBUS acknowledges and agrees that time is of the essence in
performing its obligations under this Agreement.
b) The Software delivered by POLYBUS shall be useable on and compatible with
AUGMENT's hardware products, shall be delivered in binary and source form,
shall include all data files, make files, and other information required to
build the executable software from the source, and shall include
enhancements, improvements, modifications and additions thereto, as agreed
to in Section 5 herein.
2. DELIVERY, TESTING AND ACCEPTANCE.
a) Delivery. POLYBUS shall deliver the Alpha, Beta and final versions of the
Software to AUGMENT according to the timetable in Schedule B attached
hereto. POLYBUS shall memorialize each delivery in a written confirmation
that sets forth the nature and condition of the Software, the medium of
delivery, and the date of delivery. Receipt of the Software shall
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occur when AUGMENT countersigns each confirmation which countersigning will
not be unreasonably withheld or delayed.
b) Testing. AUGMENT shall have ten (10) business days from the date of delivery
of the applicable version of the Software to inspect, evaluate and test the
Software to determine whether it conforms to the Functional Specifications
and meets the Completion Criteria set forth in Schedule C.
c) Acceptance. Upon completion of evaluation and testing of each of the Alpha,
Beta and final versions of the Software, AUGMENT shall issue a notice of
acceptance or rejection of that version of the Software. In the event of
rejection, AUGMENT shall give its reasons for rejection in reasonable
detail. POLYBUS shall use all reasonable effort to correct any material
deficiencies or nonconformities and resubmit the rejected items within ten
(10) business days. Upon acceptance, AUGMENT shall deliver to POLYBUS a
signed, written Acceptance Certification indicating that the applicable
Completion Criteria are met. The applicable version of the Software shall be
considered accepted and the milestones defined in Schedule B shall be
considered met only after AUGMENT has provided POLYBUS with a signed
Acceptance Certification, or in the case of the final version of the
Software, upon the earlier of (i) the delivery of the final Acceptance
Certification to POLYBUS or (ii) the initial commercial shipment of the
final product which incorporates the final version of the Software (in
either event, acceptance of the final version shall hereinafter be the
"Acceptance Date").
3. MODIFICATIONS.
Neither party shall have the right to modify the Functional Specifications as
defined in Schedule A without the prior written authorization of the other party
and AUGMENT's Vice President of Engineering. POLYBUS agrees to notify AUGMENT
promptly of any factor, occurrence or event coming to its attention that may
affect POLYBUS' ability to meet its obligations under this Agreement, including,
but not limited to, any loss or reassignment of Key Employees, major equipment
failure or any other event or set of circumstances which may result in a change
of schedule.
4. PROJECT MANAGEMENT.
a) Progress Reviews. POLYBUS shall work closely with the AUGMENT engineering
staff throughout the development of the Software and shall allow AUGMENT
personnel reasonable access to POLYBUS' documentation and personnel for
design review, "walkthroughs," and discussions concerning the status and
conduct of work being performed.
b) Status Reports. Upon the request of AUGMENT, ▇▇▇▇ ▇▇▇▇▇▇ of POLYBUS will
provide AUGMENT with a weekly verbal status report either in person or by
telephone (the "Weekly Status Report"), consisting of a brief discussion of
each of the following four areas:
(1) Priorities: the current short term priorities.
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(2) Progress: the tasks accomplished in the past week.
(3) Plans: the tasks to be worked on in the next week.
(4) Problems: the problems, if any, that need AUGMENT's attention and the
problems that may delay the achievement of a milestone set forth in
Schedule B. POLYBUS shall provide a detailed explanation of any
anticipated delays and a revised target completion date, if necessary.
In addition, at the request of the AUGMENT Vice President of Engineering or
the AUGMENT Senior Engineering Manager, POLYBUS personnel will attend review
meetings as scheduled by AUGMENT, until final acceptance of the project.
These meetings are to be held at AUGMENT's Westford facility and at mutually
agreeable times.
c) Project Staffing.
(i) POLYBUS agrees to assign and commit ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
as the two engineers to develop and complete the Software. Both of these
individuals shall be deemed "Key Employees". As long as POLYBUS performs its
obligations pursuant to this Agreement, POLYBUS reserves the right to change
its key employees due to unforeseen circumstances.
(ii) AUGMENT agrees to provide the equivalent of at least one full-time
engineer to participate in the development of the Software.
(iii) The parties shall obtain and maintain in effect written agreements
with their employees who participate in the development of the Software.
Such agreements shall contain terms sufficient for each party to comply with
the provisions of this Agreement and to support all grants and assignments
of rights and ownership hereunder, and shall impose an obligation of
confidentiality on such employees with respect to the Software and the other
party's Proprietary Information (as defined herein).
5. WARRANTY; MAINTENANCE AND SUPPORT; TRAINING; ENHANCEMENTS.
a) Warranty. POLYBUS represents and warrants for a period of ninety (90) days
from the Acceptance Date (the "Warranty Period") that the Software is free
of material defects in material and workmanship. POLYBUS further warrants
that during the Warranty Period the Software shall operate substantially in
accordance with the Functional Specifications. If during the Warranty
Period, a defect in the Software appears, POLYBUS will provide maintenance
and support to remedy the defect. If, during the Warranty Period, AUGMENT
requests that POLYBUS assist AUGMENT with a defect that is later determined
to be attributable to hardware or software solely developed by AUGMENT,
AUGMENT will pay POLYBUS for such work at POLYBUS's standard hourly rate.
b) Maintenance and Support. AUGMENT may purchase continued maintenance and
support for the Software from POLYBUS for one year periods following the end
of the Warranty Period
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for the purpose of prompt correction to remedy any and all design, interface
or implementation errors or problems with the Software reported in writing
by AUGMENT to POLYBUS. The term "errors" shall mean any deviations from the
Functional Specifications and any deviations from commonly accepted
standards for normal and current operation of computer software, even if not
explicitly mentioned in such Functional Specifications. This service does
not include requests for new features, support for new hardware, support for
new operating systems, version changes in the operating system, or any other
change to the software which is not a bug fix. The cost of the maintenance
and support service for the first year after the end of the Warranty Period
shall be as set forth in Schedule F hereto, such fee is not to exceed the
lowest fee paid by other POLYBUS customers for like service. The cost for
the service in future years is to be a fairly negotiated price based on the
actual costs of the maintenance in the preceding year, which may be either
higher or lower than the prior year's maintenance costs.
c) Support and Training. During the development phase, during the Warranty
Period and while the Software is under a maintenance and support agreement,
POLYBUS agrees to furnish promptly to AUGMENT full written responses to
AUGMENT's questions regarding the design, operation and content of the
Software. This support shall not be for training new AUGMENT employees.
Additionally, POLYBUS agrees to provide up to five (5) business days of
training for AUGMENT personnel and marketing assistance. Such training shall
be provided without charge and shall be scheduled to occur within ninety
(90) days after the Acceptance Date. Thereafter any further training shall
be subject to POLYBUS' standard charges.
d) Enhancements and Modifications. For a period of one year following the
Acceptance Date, POLYBUS will provide any bug fixes it may make to the
licensed Software to AUGMENT at no additional charge, unless such bug fixes
are specifically made in response to requests by AUGMENT and AUGMENT agrees
to additional fees in writing. All enhancements and modifications made by
POLYBUS will be owned by POLYBUS. AUGMENT may modify or enhance the Software
at any time. All enhancements and modifications to the Software made by
AUGMENT after the Acceptance Date will be owned by AUGMENT.
6. OWNERSHIP OF SOFTWARE.
a) The Software shall be owned by POLYBUS, and, all modifications and software
enhancements developed by POLYBUS after the Acceptance Date, including bug
fixes, shall be owned by POLYBUS.
b) All software independently developed by AUGMENT that is not included in the
definition of Software as set forth in Schedule A hereto shall be owned by
AUGMENT. In addition, AUGMENT shall own all enhancements to the Software
developed by AUGMENT subsequent to the Acceptance Date with the exception of
bug fixes made by AUGMENT to the Software within one year of the Acceptance
Date, which shall be owned by POLYBUS.
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c) Schedule E hereto sets forth additional information regarding the ownership
of the component parts of the Software and the ownership of Derivative
Works.
7. GRANT OF LICENSE AND PAYMENT OF ROYALTIES.
a) The License. The Binary License and the Source License as defined and set
forth below in this Section 7 (together, the "License") apply to the
Software, and all other software developed or integrated with the AUGMENT
hardware product, and all other software required to build the project,
including all additions, improvements and enhancements thereto and
modifications thereof made by or for POLYBUS during the term of this
Agreement and within one year after the Acceptance Date, and all proprietary
rights based thereon or resulting therefrom.
b) The Binary License. Subject to the royalty payments provided for in Schedule
D hereto (the "Royalties"), POLYBUS hereby grants to AUGMENT, and AUGMENT
hereby accepts, the following (the "Binary License"):
(1) a perpetual, irrevocable, royalty-free, nonexclusive right and license
to use the Software (and the Documentation) and all additions,
improvements and enhancements thereto and modifications thereof in
binary code form for internal use by AUGMENT for testing, development
and demonstration purposes.
(2) a perpetual, irrevocable, royalty-free, nonexclusive right and license
for up to ten (10) units of the Software (and the Documentation) and
all additions, improvements and enhancements thereto and modifications
thereof in binary code form for internal production use by AUGMENT.
(3) a perpetual, worldwide, irrevocable, nonexclusive right and license to
manufacture and distribute the Software in binary code form in
conjunction with the AUGMENT hardware products, with the right and
license to grant sub-licenses to third parties pursuant to shrink wrap
license agreements in connection therewith without account to POLYBUS
on a royalty basis in accordance with Schedule D hereto. Within 45 days
of the end of each calendar quarter, AUGMENT agrees to provide POLYBUS
with a report indicating Royalties due along with full payment of
Royalties for all Units shipped by AUGMENT during the calendar quarter.
(4) a perpetual, worldwide, irrevocable right and license to grant
sub-licenses to AUGMENT's OEM and VAR customers to manufacture and
distribute the Software in Binary Code form in conjunction with the
AUGMENT hardware products, with a right and license to grant
sub-licenses to third parties in connection therewith without account
to POLYBUS on a royalty basis in accordance with Schedule D hereto.
AUGMENT agrees to require all such OEM and VAR customers to sign a
license agreement with a requirement that they provide royalty reports
and payments to AUGMENT within 30 days of the end of each calendar
quarter. Within 45 days of the end of each calendar quarter,
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AUGMENT agrees to provide to POLYBUS a report indicating Royalties due
and full payment of Royalties for all Units shipped during the calendar
quarter.
c) The Source License. POLYBUS hereby grants to AUGMENT, and AUGMENT hereby
accepts, the following (the "Source License"):
(1) a perpetual, irrevocable, nonexclusive fully-paid right and license to
the full source code version of the Software and all additions,
improvements and enhancements thereto and modifications thereof for a
one time charge of $20,000.00 to be paid within thirty (30) days of
delivery and acceptance of the Software and Source Code.
(2) a perpetual, irrevocable, nonexclusive right and license to
manufacture, distribute and sub-license to AUGMENT's OEM and VAR
customers source code copies of the Software for the OEM and VAR
customers' internal use only and only for use in conjunction with the
AUGMENT hardware products purchased from AUGMENT. For each such
sublicense granted, AUGMENT shall pay POLYBUS a fee in the amount equal
to the greater of (i) twenty percent (20%) of any license fee collected
by AUGMENT from an OEM or VAR customer or (ii) $10,000.00.
d) Prepaid Royalties. AUGMENT shall pay to POLYBUS the amounts set forth in
Schedule B hereto. Such payments are not due until the satisfactory
completion and acceptance of the milestones indicated, and shall be prepaid
royalties to be credited against Royalties due to POLYBUS as set forth in
Schedule D at a rate of 50% of Royalties due and payable until exhausted. If
AUGMENT is more than fifteen (15) days late in supplying POLYBUS with the
required AUGMENT-developed hardware and software, then both parties will
meet to negotiate and modify the milestone dates or milestone definitions to
allow timely payment to POLYBUS.
e) Late payments of royalties or any other payment to POLYBUS accrue interest at
the then current prime rate of interest.
8. REPRESENTATIONS AND WARRANTIES.
POLYBUS makes the following representations and warranties for the benefit of
AUGMENT, as a present and ongoing affirmation of facts in existence at all times
when this Agreement is in effect:
a) No Conflict. POLYBUS represents and warrants that it has full right and
authority to enter into this Agreement and that it is under no obligation or
restriction, nor will it assume any such obligation or restriction that does
or would in any way interfere or conflict with, or that does or would
present a conflict of interest concerning, the work to be performed by
POLYBUS under this Agreement.
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b) Ownership. POLYBUS represents and warrants (i) that it owns (and to the
extent developed during the term of this Agreement, that it will own) all
right, title and interest in and to, including but not limited to all
intellectual property rights, the Software and all other property needed to
perform its obligations under this Agreement (including pre-existing works),
and (ii) that the Software does not and will not infringe any patents,
copyrights, trademark, or other intellectual property rights (including
trade secrets), privacy or similar rights of any third party, nor has any
claim (whether or not embodied in an action, past or present) of such
infringement been threatened or asserted, nor is such a claim pending,
against POLYBUS or, insofar as POLYBUS is aware, any entity from which
POLYBUS has obtained such rights.
c) Functional Specifications. POLYBUS represents and warrants, that within ten
(10) business days of delivery of the final version of the Software, POLYBUS
will demonstrate that the Software meets the Functional Specifications and
other written representations by POLYBUS to AUGMENT, and that errors that
prevent useful operation in the Software will be corrected by POLYBUS using
every reasonable effort within ten (10) business days after notice by
AUGMENT, and all other errors will be corrected within ninety (90) days.
d) Conformity, Performance and Compliance. POLYBUS represents and warrants (i)
that all Software shall be prepared in a workmanlike manner and with
professional diligence; (ii) that all Software will function on the machines
and with operating systems for which they are specified; (iii) that all
Software will conform to the Functional Specifications and functions set
forth in the Functional Specifications; and (iv) that POLYBUS will perform
all work called for herein in compliance with applicable law.
e) No Restrictions on Software. POLYBUS warrants that there is no program code,
other than that stated in the Functional Specifications that will restrict
AUGMENT's use of its License to the Software.
9. INDEMNIFICATION.
a) POLYBUS shall indemnify AUGMENT and hold AUGMENT harmless from and against
any and all demands, claims, damages, losses, and expenses (including court
costs and reasonable fees of attorneys, accountants, and expert witnesses)
arising out of or resulting from any negligent act or omission or willful
conduct of POLYBUS or POLYBUS employees or agents in connection with this
Agreement.
b) POLYBUS shall also indemnify AUGMENT and hold it harmless from and against
all demands, claims, damages, losses, and expenses (including reasonable
costs, fees of attorneys, accountants, and expert witnesses) arising out of
or resulting from any action by a third party against AUGMENT that is based
on any claim that the Software provided by POLYBUS hereunder infringes upon
any patent, copyright, trademark or other proprietary rights of any person
or entity.
c) AUGMENT shall indemnify POLYBUS and hold POLYBUS harmless from and against
any and all demands, claims, damages, losses, and expenses (including court
costs and reasonable
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fees of attorneys, accountants, and expert witnesses) arising out of or
resulting from any negligent act or omission or willful conduct of AUGMENT
or AUGMENT employees or agents in connection with this Agreement.
10. LIMITATIONS.
Neither party shall be entitled to indirect, incidental, or consequential
damages, including lost profits based on any breach or default under this
Agreement.
11. CONFIDENTIALITY.
a) Each party acknowledges that the Proprietary Information (as defined herein)
is a highly confidential and valuable asset of its owner which has been and
will continue to be developed by the owner, and which represents and will
continue to represent a material investment of the owner's time and money.
Further, each party acknowledges that such Proprietary Information either
has been or will be made available to the other party on a confidential
basis and that the recipient has or will accept such Proprietary Information
on such basis, thereby establishing a confidential relationship and a
position of trust with regard to same. During the development and
integration of the Software, and after the development and integration are
ended, and for a period of five (5) years after the term of this Agreement,
the recipient agrees not to:
(1) publish, communicate, disclose or divulge to any person, firm,
corporation or other legal entity directly or indirectly, any of the
Proprietary Information, except as otherwise permitted herein;
(2) use the Proprietary Information for its own benefit, directly or
indirectly except as required in the course of the project, or use the
Proprietary Information, directly or indirectly, for the benefit of any
person, firm, corporation or other legal entity, directly or indirectly;
(3) use any of the Proprietary Information or take any other action to
divert, or attempt to divert, any business of or any customers of the
other party to itself or any other competitive person or legal entity,
by direct or indirect inducement or otherwise; or to induce or attempt
to induce any present or past customer of the other party to discontinue
using the services of the other party; and
(4) employ or seek to employ any person who is employed by the other party
or to otherwise directly or indirectly induce such persons to leave
employment of the other party.
b) The recipient shall disclose Proprietary Information only to those agents,
employees or representatives within its own organization or professional
advisors who have a need to receive said information in connection with the
project so long as all such persons agree to abide and be bound by the terms
of this Agreement.
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c) The parties agree that all Source Code shall be treated as confidential
Proprietary Information subject to the license provisions of this Agreement.
d) "Proprietary Information" shall mean all confidential, technical, business
and economic information or data owned or developed by either party,
including, but not limited to, that party's products, processes, and
services, including research, development, compilations of information,
records and Functional Specifications, management information systems,
techniques, formulae, computer programs, product applications, documentation
of such produce applications and methods, manuals, financial data, data
processing, marketing plans, selling procedures, prospect lists, customer
base list, sponsors list, sales strategies, policies, scripts, literature,
and audiovisual materials, software and documentation and Functional
Specifications thereof, and other information of any nature and in any form.
Proprietary Information as defined herein shall not include the following:
(1) Information which either party legally had in its
possession prior to the other party's disclosure of such
information to it;
(2) Information which is furnished to either party by a third
party as a matter of right without restriction on
disclosure and which was not received directly or
indirectly from the other party;
(3) Any other information once it becomes part of the public
domain by publication or otherwise through no act of the
recipient;
(4) Information approved in writing for release or disclosure
by the nondisclosing party; or
(5) Information disclosed by reason of order of a court of
competent jurisdiction.
12. NONCOMPETITION.
a) POLYBUS shall not to enter into direct competition with AUGMENT during the
term of this Agreement in the publishing market, and it shall not license,
sell or transfer the Software to any party for a purpose that competes with
AUGMENT in the publishing market without the express written consent of
AUGMENT. For the purpose of this Agreement, the publishing market shall
include, but not be limited to, the areas listed in Schedule G hereto and
shall specifically exclude video and entertainment markets and software
publishing (the electronic "publishing" of software packages).
b) AUGMENT agrees to sublicense the Software only in conjunction with AUGMENT
hardware products marketed and sold by AUGMENT.
13. TERM.
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a) This Agreement shall be effective upon execution by both parties and shall
continue until terminated in accordance with the provisions of this
Agreement. The term of any rights or licenses under proprietary rights
granted hereunder shall be for the full term of such proprietary rights.
b) Unless sooner terminated as hereinafter provided, this Agreement shall
continue in force for an initial term of twenty-five (25) years from the
date hereof. Thereafter said term shall automatically extend for an
indefinite period unless and until terminated as hereinafter provided.
14. TERMINATION.
a) This Agreement may be terminated only:
(1) By AUGMENT upon POLYBUS's failure to satisfy any of its
material obligations hereunder (a "default") including, but not
limited to, failure to satisfy any of the specific milestones as
specified in Schedule B, which failure is not caused by some act,
delay or omission to act, on the part of AUGMENT. Upon a default
by POLYBUS, AUGMENT shall provide written notice to POLYBUS of
such default, and POLYBUS shall have sixty (60) days to cure such
default. If POLYBUS fails to cure such default within said sixty
(60) day period, AUGMENT may immediately terminate this Agreement.
In the event of termination by AUGMENT as provided for herein,
POLYBUS will deliver all Software developed under this Agreement
in source code form, in the then current state to AUGMENT and
AUGMENT shall be deemed to have a fully paid-up, irrevocable,
nonexclusive, worldwide license to said Software with no further
payments due to POLYBUS. Nothing herein contained shall prohibit
POLYBUS in any way from exercising its other rights retained in
this Agreement with respect to the Software, as long as such
rights are exercised in compliance with the provisions of this
Agreement.
(2) By AUGMENT prior to final acceptance, upon POLYBUS's filing of
or consenting to the filing against it a Petition in Bankruptcy or
a petition to take advantage of any insolvency act, or making an
assignment for the benefit of creditors, which Petition is not
dismissed within ninety (90) days. In such event, the amounts paid
to date by AUGMENT shall be considered a fully paid-up license fee
for the Software developed to date and POLYBUS shall provide the
Software including the source code to AUGMENT as a fully paid up,
nonexclusive, irrevocable, worldwide license with no further
payments due to POLYBUS. Nothing herein contained shall prohibit
POLYBUS in any way from exercising its other rights retained in
this Agreement with respect to the Software, as long as such
rights are exercised in compliance with the provisions of this
Agreement.
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(3) By POLYBUS upon AUGMENT's failure to make payment or satisfy
any of its obligations hereunder (a "default") in any material
respect and such default shall not have been cured within sixty
(60) days following delivery of notice of such default. In the
event of termination by POLYBUS as provided for herein, AUGMENT
will certify that all copies of the Software delivered to date
under this Agreement have been destroyed. All rights to the
Software shall remain with POLYBUS.
b) Survival. Upon any termination of this Agreement, all rights and obligations
of the parties under this Agreement shall cease except that the provisions
of Sections 6, 9, 10, 11 and 12 shall survive and not be affected by such
termination. Notwithstanding the foregoing, in the event of termination of
this Agreement pursuant to section 14(a)(3) hereto, the provisions of
Section 6, 9, 10 and 11 only shall survive and not be affected by such
termination.
15. MISCELLANEOUS PROVISIONS.
a) Waiver. No provision of this Agreement may be waived except in writing by
both parties hereto. No failure or delay by either party hereto in
exercising any right or remedy hereunder or under applicable law will
operate as a waiver thereof, or a waiver of a particular right or waiver of
any right or remedy on any subsequent occasion.
b) Governing Law. This Agreement shall be governed and construed in accordance
with the internal laws of the Commonwealth of Massachusetts. Both parties
hereto agree to submit to personal jurisdiction in the Commonwealth of
Massachusetts and to accept and agree to venue in that state.
c) Force majeure. Either party shall be excused from delays in performing or
from its failure to perform hereunder to the extent that such delays or
failures result from causes beyond the reasonable control of such party;
provided that, in order to be excused from delay or failure to perform, such
party must act diligently to remedy the cause of such delay or failure.
d) Severability. In the event that any provision of this Agreement, or any part
hereof, is found invalid or unenforceable, the remainder of this Agreement
will be binding on the parties hereto, and will be construed as if the
invalid or unenforceable provision or part thereof had been deleted, and the
Agreement shall be deemed modified to the extent necessary to render the
surviving provisions enforceable to the fullest extent permitted by law.
e) No Assignment. Except as otherwise specifically set forth in this Agreement,
neither party may, without the prior written consent of the other party,
assign or transfer this Agreement or any obligation incurred hereunder,
except by merger, reorganization, consolidation, or sale of all or
substantially all of such party's assets. Any attempt to do so in
contravention of this provision shall be void and of no force and effect.
Any permitted assignee shall assume all obligations of its assignor under
this Agreement. No assignment shall relieve either party of responsibility
for the performance of any accrued obligation which such party then has
hereunder.
-License Agreement - Page 11-
The above notwithstanding, POLYBUS retains the right to assign this
Agreement to a new Corporation, Limited Liability Company, or Limited
Liability Partnership, providing that ▇▇▇▇ ▇▇▇▇▇▇ is a principal of said
Corporation, Company or Partnership.
f) Required Approvals. Where agreement, approval, acceptance, or consent by
either party is required by any provision of this Agreement, such action
shall not be unreasonably delayed or withheld.
g) Amendments in writing. No amendment, modification, or waiver of any
provision of this Agreement shall be effective unless it is set forth in a
writing that refers to the provisions so affected and is executed by an
authorized representative of the party accepting any such waiver, or, in the
case of an amendment or modification, by authorized representatives of both
parties.
h) Counterparts. This Agreement may be executed in duplicate counterparts, each
of which shall be deemed to be an original and both of which shall
constitute one and the same Agreement.
i) Notice. All communications between the parties with respect to any of the
provisions of this Agreement will
be sent to the addresses set forth below or to other addresses as notified
by the parties for the purpose of this clause, by prepaid certified mail.
If to AUGMENT, at:
Augment Systems Incorporated
Two ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
If to POLYBUS, at:
Polybus Systems Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
j) Headings. The paragraph headings are for convenience only and will not be
deemed to affect in any way the language of the provisions to which they
refer.
k) Schedules and Exhibits. The Schedules and Exhibits referred to herein and
attached hereto, are incorporated herein to the same extent as if set forth
in full herein.
l) Authority. The undersigned represent that they are authorized to sign this
Agreement on behalf of the parties hereto. The parties each represent that
no provision of this Agreement will
-License Agreement - Page 12-
violate any other agreement that a party may have with any other person or
company. Each party has relied on that representation in entering into this
Agreement.
m) Entire Agreement. This Agreement, including the Schedules (and Exhibits)
appended hereto, contains the entire understanding of the parties relating
to the matters referred to herein, and may only be amended by a written
document, duly executed on behalf of the respective parties.
n) Legal and Equitable Remedies. Because the development of the Software by
POLYBUS is personal and unique and because POLYBUS may have access to and
become acquainted with the confidential Proprietary Information of AUGMENT,
AUGMENT shall have the right to enforce this Agreement and any of its
provisions by injunction, specific performance, or other equitable relief
without prejudice to any other rights and remedies that AUGMENT may have for
breach of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
AUGMENT SYSTEMS INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇, President and CEO
POLYBUS SYSTEMS CORPORATION
By: /s/▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, President
-License Agreement - Page 13-
SCHEDULE A
PROJECT DESCRIPTION
SOFTWARE:
POLYBUS shall develop and provide a high speed file system consisting of the
following components (the "Software"):
Server File System Software - To run on the server and provide file
management services. This includes software to mount and dismount disk
system extents and to startup and shutdown a server. The server shall
consist of a RAID disk subsystem, block I/O processor, one or more file I/O
processors each connected to a FibreChannel Arbitrated Loop, and Macintosh
console system. The server shall not include user interface access to this
Software;
Client Software - To run on the user's Macintosh desktop and redirect file
access and I/O for server based files;
Client Chooser - To run on the client Macintosh system and provide chooser
functionality in conjunction with the server;
Server Utility Software - To initialize, verify, and rebuild file
structures on the disks, but does not include user interface access to this
Software;
All POLYBUS-Developed Test Scripts and Tools - To test the functionality of
the code delivered;
Performance Measurement Tools - To measure the performance of the software
delivered.
DOCUMENTATION:
For purposes of this Agreement, Software shall also include the following:
Firebird File Management Software Specification and Project Plan
Final Design Document
All software will be delivered in source and binary form and include all data
files, make files, and other information required to build the executable
software from the source. All final documentation will be delivered in both
printed and electronic form in a format to be agreed upon.
CAPABILITIES:
The Software shall have the following capabilities:
- License Agreement - Schedule A -
1. Compatibility - Provide server file access to desktop applications in a
manner transparent to the applications so that all commercial desktop
applications will perform properly with the AUGMENT's hardware
products. Compatibility with the Apple Macintosh environment is the
initial requirement. It is intended that this software will be used
with other clients utilizing future Macintosh Operating Systems such as
▇▇▇▇▇▇▇, and Microsoft Operating Systems such as Windows and Windows
NT, and various versions of UNIX. Two objectives of this development
are to design the server (a) such that additional client targets may be
supported by using the existing client software as a framework for
constructing new clients appropriate to the target platform, and (b) so
that when additional server functionality is needed by new clients, it
can be easily added without significant work, and without redoing any
existing server functionality;
2. Performance - Provide end to end throughput of at least 75% of the
underlying hardware and software for large files to/from a single
client. When multiple clients access the server simultaneously the
total system throughput will be shared between the clients with no
client being blocked for excessive periods;
3. Multi-Access - Ability to handle multiple clients accessing the same or
different files simultaneously;
4. Multi-Extents - Ability to handle multiple disk system extents on a
single processor, where each extent is a contiguous area of the disk
storage and may contain multiple partitions. Each extent will be
managed by one and only one processor at a time, but the management of
an extent may be moved from one processor to another through an
administrator function which may require a reboot of the file
management system. The maximum number of extents to be handled by any
processor is a compile time option;
5. Large File Stores - Ability to handle file stores of up to 1 terabyte
and files of up to 100 gigabytes. (It is agreed and understood that the
current MAC OS software can not handle files greater than 2 gigabytes
in size);
6. Robust Operation - Provide reliable file service under normal operating
conditions without any loss of data. Provide for fast recovery in the
event of a system or power failure.
ENVIRONMENT:
The Software must operate on AUGMENT's super server 68040 processor cards
running the VRTX operating system (to be supplied by AUGMENT). It is intended
that the code will be ported to other environments and processors in the future,
and within reasonable design parameters, will be designed and implemented to
minimize the effort required to accomplish this objective.
- License Agreement - Schedule A -
ADDITIONAL FUNCTIONAL SPECIFICATIONS:
Incorporate EXHIBIT A information if necessary.
- License Agreement - Schedule A -
SCHEDULE B
TIMETABLE AND PREPAID ROYALTY PAYMENTS*
MILESTONE # MILESTONE AMOUNT TARGET MILESTONE PAYMENT DATE
----------- --------- ------ ---------------- ------------
DATE
----
1 Signing of Letter of Intent $20,000 2/9/96 Paid
2 Delivery of Project Plan $10,000 3/24/96 Paid
and Specification
3 Signing of Contract $20,000 8/1/96 Paid
4 Alpha Delivery to Augment for $10,000 6/2/96 8/1/96
Quality Assurance Testing
5 Alpha Two Delivery to Augment $10,000 8/5/96 + 14 days
Quality Assurance Testing
6 Alpha Two plus Mac based Fibre $10,000 8/19/96 + 14 days
Channel and pre-show test system
7 Show System $10,000 9/2/96 + 14 days
8 Final Delivery $10,000` 9/30/96 + 14 days
*Prepaid royalty payments are tied to actual milestone completion dates. Prepaid
royalty payments shall be credited against future royalty payments due at the
rate of 50% of royalty payments due until exhausted.
- License Agreement - Schedule B -
SCHEDULE C
COMPLETION CRITERIA
The Completion Criteria for Alpha, Beta, and Final release are as follows:
1. ALPHA RELEASE:
a) PLATFORM:
The platform for the Alpha release will be Apple Power Macintosh systems
for both the server and the clients. The environment will consist of three
Power Mac systems (two clients and one server) connected via a Fibre
Channel Arbitrated Loop and Ethernet. All hardware for the Alpha system
will be provided by AUGMENT and the acceptance will be performed at the
facility of AUGMENT's choice.
FUNCTIONALITY:
The Alpha system will include all functionality that can reasonably be
implemented using a single Macintosh server. At a minimum the system will
be capable of running a selected number of applications on the clients,
accessing memory on the server.
b) PERFORMANCE:
The alpha system is not subject to a specific performance criteria, but
should perform in a manner that is indicative to both POLYBUS and AUGMENT
engineers that the performance objectives for the final product will be
achieved.
c) ROBUSTNESS:
The Alpha system should perform without crashing for sessions of up to 1
hour. It is not required to be bug free, but must be sufficiently so to
demonstrate the functionality of the system.
d) DOCUMENTATION:
The Alpha system will be accompanied with a set of release notes suitable
for use by development engineers at AUGMENT.
2. BETA RELEASE:
a) PLATFORM:
The platform for the Beta release will be Apple Power Macintosh client and
the Augment Super server. The test environment will consist of two Power
Mac systems and one Super server with two processors, connected via a Fibre
Channel Arbitrated Loop and Ethernet. All hardware for the test system will
be provided by AUGMENT and the acceptance will be performed at the facility
of AUGMENT's choice.
- License Agreement - Schedule C -
FUNCTIONALITY:
The Beta system will include all of the functionality specified for the
final delivery. At a minimum the system will be capable of running a
selected number of applications on the clients, accessing files on the
server.
b) PERFORMANCE:
The beta system should meet the performance criteria specified for the
final product. If this can not be achieved, POLYBUS must provide a plan
that shows to AUGMENT's satisfaction how the performance criteria will be
achieved in the final product.
c) ROBUSTNESS:
The beta system will be installed at customer sites and used for
demonstration purposes. It must remain function, under script driven loads,
for a minimum of 8 hours without failure. Minor known bugs that do not
interfere with the operation of the machine, and/or for which there are
defined work-arounds that do not interfere with the normal operation of the
machine, are acceptable.
d) DOCUMENTATION:
The beta system will be accompanied with a set of release notes suitable
for use by AUGMENT and the beta sites.
3. FINAL RELEASE:
a) PLATFORM:
The platform for the Final release will be Apple Power Macintosh clients
and the Augment Super server. The test environment will consist of multiple
Power Mac systems and one Super server with two or more processors,
connected via a Fibre Channel Arbitrated Loop and Ethernet connected to
clients and the console. All hardware for the test system will be provided
by AUGMENT and the acceptance will be performed at AUGMENT's facilities.
FUNCTIONALITY:
The Final system will include all of the functionality specified for the
final delivery. At a minimum the system will be capable of running a random
number of applications on the clients, accessing files on the server. The
server must remain operational and error free running under script driven
load for a period of 24 hours, during which random amounts of interactive
operations are performed.
b) PERFORMANCE:
The beta system should meet the performance criteria specified for the
final product.
c) ROBUSTNESS:
All known "material" problems must be resolved for final acceptance
- License Agreement - Schedule C -
d) DOCUMENTATION:
The final system will be accompanied with a set of release notes suitable
for use by AUGMENT. In addition the final delivery will include a final
design document describing the software as implemented.
- License Agreement - Schedule C -
SCHEDULE D
ROYALTY SCHEDULE
AUGMENT will pay royalties to POLYBUS according to the following schedule:
TOTAL SERVER UNITS SHIPPED TO DATE
FROM TO ROYALTY PER SERVER ROYALTY PER CLIENT TYPE
1-10 Users
1 100 $800 $400
101 300 $400 $200
301 600 $200 $100
601 1000 $100 $50
1001 100,000 $50 $25
Greater than 100,000 No Royalty No Royalty
A server is one physical AUGMENT server box that contains one RAID subsystem
consisting of multiple disks and one or more control processors each running a
copy of the Software.
A Client Type is computer and operating system type such as Macintosh, Windows
NT or UNIX. For example, a single AUGMENT server that contained 3 controller
cards and was connected to 15 Macintosh computers and 2 NT systems would require
1 server license + 2 Macintosh client licenses + 1 NT client license.
- License Agreement - Schedule D -
SCHEDULE E
SOFTWARE COMPONENT OWNERSHIP
POLYBUS will own the following software components developed as part of this
project. These components are subject to the royalty provisions of this
Agreement. The components in (1) and (2) are server software. The components (3)
and (4) are part of the client software.
1. The file manager software including the File System Process, the File
Extend Process, the Read/Write Process, the Transaction Journal
Process, and the Ping Process, and all related software components
developed by POLYBUS, as described in Exhibit A.
2. Structure Verify and Rebuild Tools and Library.
3. The Super Server Chooser as developed by POLYBUS.
4. The File System Client Extension as developed by POLYBUS.
5. The File Server Protocols. The protocols are represented in Exhibit N
to the Project Plan and may be entered or changed as necessary through
the product cycle.
POLYBUS will own the following software components developed as part of this
project. These components are for development and QA purposes and provided to
AUGMENT without any royalty charges.
1. Test scripts and test tools developed by POLYBUS as part of this
project.
2. Performance measurement tools developed by POLYBUS as part of this
project.
AUGMENT will own the following software components:
1. The Fibre Channel communications software.
2. All Super server motherboard based software.
3. All Super server diagnostic software.
4. All Super server console software developed by AUGMENT.
5. User interface developed by AUGMENT.
- License Agreement - Schedule E -
Derivative Works shall be owned by the party that develops such Derivative Work.
a) NT Client - AUGMENT intends to implement a Windows NT client to
work with the server. This software will utilize parts of the
Macintosh Client software developed and owned by POLYBUS. It will
therefore be a Derivative Work, owned by AUGMENT, subject to
royalty payments to POLYBUS as client software according to
Schedule D.
b) Apple Share extension - AUGMENT intends to enhance the Software
to support Apple Share access. This software will be an
enhancement to the Software, owned by Augment.
- License Agreement - Schedule E -
SCHEDULE F
SUPPORT AND MAINTENANCE FEES FOR THE FIRST YEAR
Updates, No Support $5,000
Support and Updates $30,000
For each week of support $3,500
or an hourly rate of $100
- License Agreement - Schedule F -
SCHEDULE G
EXAMPLES OF THE PRINTING AND PUBLISHING INDUSTRY APPLICATIONS
Newspapers
Magazines
Periodicals
Book Publishing
Book Printing
Commercial Printing
Business Forms
Greeting Cards
Blankbooks and Looseleaf
Typesetting
Platemaking
In-House (corporate)
Art & Design Services
DTP Service Bureaus
Color Separators
- License Agreement - Schedule G -
EXHIBIT A
FIREBIRD FILE MANAGER SOFTWARE SPECIFICATION AND PROJECT PLAN
- License Agreement - Exhibit A -