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EXHIBIT 10.35
SOFTWARE DEVELOPMENT AND LICENSE AGREEMENT
BETWEEN
INTEL CORPORATION
AND
ENLIGHTEN SOFTWARE SOLUTIONS, INC.
EFFECTIVE DATE: 10/21/99
AGREEMENT No.: 1308605
Parties:
Intel Corporation (including all majority owned subsidiaries and affiliates,
hereinafter "Intel")
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Licensor (hereinafter "Enlighten")
Enlighten Software Solutions, Inc.
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This Software Development And License Agreement ("Agreement") sets forth the
terms under which Enlighten agrees to develop, license and deliver the Licensed
Software to Intel in accordance with the provisions contained in the following
exhibits which are included in and made a part of this Agreement. Enlighten and
Intel are each referred to in the Agreement as a "Party," and collectively as
the "Parties:
Exhibit "A" - General Terms and Conditions
Exhibit "B" - Licensed Software Descriptions and Specifications
Exhibit "C" - Compensation Provisions
Exhibit "D" - Maintenance and Support Obligations
Exhibit "E" - Certificate of Originality
Exhibit "F" - Statement of Work
Exhibit "G" - Corporate Non-Disclosure Agreement
Exhibit "H" - Source Code Provisions
AGREED
INTEL CORPORATION ENLIGHTEN SOFTWARE SOLUTIONS, INC.
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Signature Signature
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Printed Name Printed Name
CPG Vice President,
SMD General Manager President
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Title Title
10/21/99 10/21/99
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Date Date
INTEL / ENLIGHTEN CONFIDENTIAL
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EXHIBIT "A"
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
1.1 General Definitions.
(a) "DERIVATIVE WORKS" means, for purposes of this Agreement, any
work that would be deemed a Derivative Work under the Copyright
Act, Title 17 of the U.S. Code and any analogous provisions
under applicable patent or trade secret law.
(b) "DEVELOPMENT TOOLS" means those Enlighten proprietary software
development tools licensed to Intel by Enlighten to facilitate
the integration, modification, and support of the Licensed
Software. Development Tools are set forth in Exhibit B.
(c) "DISTRIBUTORS" means Intel's resellers, distributors, original
equipment manufacturers ("OEMs"), value-added resellers
("VARs"), system integrators, dealers, agents, and
subdistributors.
(d) "END-USER DOCUMENTATION" shall mean any end user installation
and user guides, manuals, and other technical information in
printed and machine-readable form that is normally provided by
Enlighten to end users of the Licensed Deliverables. End User
Documentation specifically excludes Technical Documentation.
(e) "FIRST CUSTOMER SHIPMENT" means the date of first commercial
shipment by Intel of the Integrated Intel Product to a
Distributor or end user.
(f) "ENLIGHTEN INTELLECTUAL PROPERTY RIGHTS" means Enlighten's
rights (including under licenses from third parties), now or
hereafter existing, in any (i) patents and patent applications,
(ii) copyrights in the Licensed Products, and (iii) trade
secrets in or necessary to the Licensed Deliverables.
(g) "INTEGRATED INTEL PRODUCT(S)" means the Intel Product(s) into
which the Licensed Deliverables are integrated in accordance
with this Agreement. The initial Intel Product(s) to include the
Licensed Deliverables shall be the Linux version of Intel's
LANDesk(R) Server Manager product as created under Exhibit F
(SOW). Upon Intel's request, the Parties may mutually agree to
add additional Intel Integrated Products to this Agreement
subject to mutual written agreement by the Parties as to an
applicable SOW and the applicable royalties for such additional
Intel Integrated Product(s).
(h) "INTEL ENABLING TECHNOLOGY" means the Intel proprietary
technology as defined and set forth in Exhibit A, which will be
used, modified and/or integrated by Enlighten with the Licensed
Deliverables (or portions thereof) in developing the Intel
Integrated Product as set forth in Exhibit F (SOW).
(i) "INTEL INTELLECTUAL PROPERTY RIGHTS" means Intel's rights
(including under licenses from third parties), now or hereafter
existing, in any (i) patents and patent applications, (ii)
copyrights in the Intel Enabling Technology, and (iii) trade
secrets in or necessary to the Intel Enabling Technology.
(j) "INTEL PRODUCTS" means any or all current and future Intel
products and/or services that are developed, provided, rendered,
manufactured, marketed, distributed, licensed, or sold by or for
Intel and/or its Distributors.
INTEL / ENLIGHTEN CONFIDENTIAL
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(k) "INTEL UNIQUE TECHNOLOGY" means that subset of the Licensed
Deliverables to be developed by Enlighten pursuant to Exhibit F
(SOW) which consists of technology that is unique to the Intel
environment. Intel shall receive an exclusive license, including
Licensed Software Source Code rights, to Intel Unique
Technology.
(l) "LICENSED DELIVERABLES" means the Licensed Software, Development
Tools, Intel Unique Technology, Technical Documentation, End
User Documentation and all other deliverables set forth in
Exhibit B that Enlighten develops, delivers and licenses to
Intel under this Agreement for the fees paid in accordance with
Exhibit C.
(m) "LICENSED SOFTWARE" means Enlighten's current software programs
and technology, including all component parts thereof, and
Update(s) thereto provided to Intel by Enlighten in Object Code
form, which are included with the Licensed Deliverables as
described in Exhibit B.
(n) "NET REVENUES" means the amount Intel receives from sales of any
Integrated Intel Product, less any returns, discount allowances,
third party sales commissions, duties, taxes, freight and/or
insurance, if any, irrespective of how such Intel Integrated
Product is distributed (e.g. - initial sale, product upgrade,
software maintenance agreement, maintenance renewal agreement,
etc.). For purposes of this Net Revenue definition, sales of
Intel Integrated Products shall also include any amounts
received by Intel for distribution of the Intel Integrated
Product to Intel Product customers when bundled by Intel with
other Intel Products and/or third party offerings as set forth
in Exhibit C. Amounts received by a Party as deposits or
advances will not be deemed to have been received until
recognition of the revenue of the product to the party making
the deposits or advances have been made against such deposits or
advances. In determining amounts due in situations where Intel
receives a partial payment covering multiple Intel Products,
such partial payments will be prorated over all Intel Products
included in the invoice and the prorated portion attributable to
the Intel Integrated Product(s) will be included in Net Revenue
definition as defined above. Amounts received by the party in
foreign currencies will be deemed converted into United States
Dollars at the average exchange rates used by the party in its
financial statements for the month of receipt.
(o) "OBJECT CODE" means software, including all computer programming
code in binary form, that is directly executable by a computer
after suitable processing but without the intervening steps of
compilation or assembly, and all help, message, overlay files,
whether in electronic or hard copy form.
(p) "SOURCE CODE" means the software code from which Object Code is
compiled. Source Code includes the commented software source
code and design documentation for the relevant software, machine
readable form, that are used to develop or test the software.
Source Code includes, for example, relevant electronically
readable source documentation, design documents, data models,
help materials, tutorial programs necessary to compile the
Source Code into executable, fully-functioning Object Code.
(q) "TECHNICAL DOCUMENTATION" means any engineering and interface
documentation in connection with the Source Code for Licensed
Deliverables and includes, without limitation, the Licensed
Deliverables identified in Exhibit B as the High Level
Architectural Specification and the Low Level Design
Specification for the Enlighten Event Router and the Management
Directory Plug-In. Any delivery of Source Code must be
accompanied by Technical Documentation sufficient to enable
compilation of the Source Code into Object Code.
(r) "UPDATE" means any Major, Minor Releases, and Incremental
Releases as provided under the Enterprise Support Exhibit D
provided under this Agreement.
INTEL / ENLIGHTEN CONFIDENTIAL
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2. LICENSE GRANTS:
2.1 Licensed Software Object Code: Subject to the terms and conditions of
this Agreement, Enlighten hereby grants to Intel a non-exclusive,
world-wide, royalty-bearing, irrevocable (except for material breach)
and assignable license under Enlighten's Intellectual Property Rights
to, use, copy, modify, perform and display the Licensed Software in
Object Code form and to create Derivative Works therewith in the form of
Integrated Intel Products and to distribute and sell access to the
resulting Integrated Intel Product, either directly or indirectly
through Intel's Distributors. Notwithstanding the foregoing, the license
for Intel Unique Technology shall be exclusive to Intel. Additionally,
Intel shall be accorded the royalty free right and interest in all of
the aforementioned license rights to include and distribute those
portions of the Licensed Deliverables with the console of Intel's
LANDesk Management Suite product as further set forth in Exhibit B;
notwithstanding the foregoing, and for the avoidance of any doubt, the
foregoing sentence shall not affect the payment of applicable royalties
as specified under Exhibit C
2.2 Development Tools Object Code: Enlighten hereby grants to Intel a
non-exclusive, world-wide, irrevocable (except for material breach) and
assignable, internal license under Enlighten's Intellectual Property
Rights to use, copy (up to the number of Licenses purchased from
Enlighten), perform and display the Development Tools in Object Code
form for the purpose of developing and integrating the Licensed Software
with the Intel Product(s) listed in Section 1 (g) above, to form and
support Derivative Works in the form of Integrated Intel Products.
2.3 End User Documentation: Subject to the terms and conditions of this
Agreement, Enlighten hereby grants to Intel a royalty free,
non-exclusive, irrevocable (except for material breach) assignable,
worldwide license, under Enlighten's Intellectual Property rights for
any works of authorship embodied in the End User Documentation to (a)
copy and modify the Documentation for the purpose of creating
Documentation for the Integrated Intel Products; (b) have the End User
Documentation copied and modified for the purpose of creating
Documentation for the Integrated Intel Products; (c) incorporate the
whole or parts of the End User Documentation into other similar
materials prepared by or for Intel for the purpose of creating
Documentation for the Integrated Intel Products; and (d) distribute the
End User Documentation and copies thereof, in whole or in part, by any
means now known or developed in the future.
2.4 Technical Documentation: Subject to the terms and conditions of this
Agreement, Enlighten hereby grants to Intel a non-exclusive, assignable,
world-wide, irrevocable, non-royalty bearing, internal license under
Enlighten's Intellectual Property Rights to make, use, copy, modify,
perform and display the Technical Documentation and Derivative Works
therefrom.
2.5 Licensed Software Source Code: Subject to Terms and Conditions of this
Agreement, and more specifically Section 8.3 (c) and provided that a
triggering condition as set forth in Exhibit H has occurred, Enlighten
hereby grants to Intel a non-exclusive, world-wide, irrevocable,
non-royalty bearing, non-transferable, license under Enlighten's
Intellectual Property Rights to, use, copy, modify, perform and display
the Licensed Software in Source Code to support the pre-existing
Integrated Intel Product. Notwithstanding the foregoing, Intel shall be
provided such Source Code license rights for all Intel Unique Technology
regardless of whether a triggering condition has occurred with the
additional provisions that such Source Code license to Intel Unique
Technology shall be exclusive to and transferable by Intel.
2.6 Intel Enabling Technology: Intel hereby grants to Enlighten a
non-exclusive, world-wide, irrevocable (except for material breach)
internal license under Intel's Intellectual Property Rights to use,
copy, modify, perform and display the Intel Enabling Technology and
Technical Documentation for the sole and exclusive purpose of developing
the Intel Integrated Product pursuant to Exhibit F (SOW).
INTEL / ENLIGHTEN CONFIDENTIAL
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3. OWNERSHIP
3.1 Ownership of the Licensed Deliverables: Subject to the licenses granted
to Intel pursuant to this Agreement, all rights, title and interest in
and to the Licensed Deliverables, are and shall at all times remain
Enlighten's or Enlighten's supplier's sole and exclusive property.
3.2 Ownership of Derivative Works: Subject to the licenses granted to each
party by the other party pursuant to this Agreement, all rights, title
and interest in and to any material contributed by or for a Party in the
creation of Derivative Works under this Agreement, shall at all times
remain with such Party and/or its suppliers, subject to the other
Party's ownership interests in the original preexisting work.
Notwithstanding the foregoing, all Derivative Works of the Intel Unique
Technology created by or for Enlighten shall be the sole and exclusive
property of Intel and Enlighten shall assign to Intel all Enlighten
Intellectual Property Rights in such Intel Software Derivative Works
necessary to perfect Intel's ownership interest therein.
3.3 Ownership of Intel Enabling Technology: Subject to the licenses granted
to Enlighten pursuant to this Agreement, all rights, title and interest
in and to the Intel Enabling Technology shall at all times remain the
sole and exclusive property of Intel or Intel's suppliers.
3.4 Ownership of Licensed Software: Licensed Software delivered to either
party in Object Code form may not be reverse compiled, reverse
assembled, reverse engineered, used, executed, copied, or modified
except as stated in this Agreement. Each party must abide by all
proprietary rights on the Object Code software and its related
documentation.
4. COMPENSATION
Intel will compensate Enlighten according to the Compensation Provisions
set forth in Exhibit C.
5. MAINTENANCE AND SUPPORT OBLIGATION
Enlighten will provide engineering support and maintain and support the
Licensed Software and all Updates according to the provisions and period
set forth in Exhibit D.
6. WARRANTIES:
6.1 Enlighten makes the following representations and warranties to Intel in
connection with the Licensed Software:
(a) The Licensed Software will perform in substantial conformance
with the specifications set forth in Exhibit B (the
"Specification") and any applicable Statement of Work ("SOW")
and that the Licensed Software does not contain errors that
prohibit its operation in material conformance therewith. If the
Licensed Software fails to conform to either the Specification
or any applicable Statement of Work upon delivery to Intel and
testing by Intel, Enlighten agrees to use reasonable efforts to
modify the Licensed Software to conform therewith, in a timely
manner, in accordance with Section 5 of this Agreement.
(b) To the best of Enlighten's knowledge, the Licensed Software does
not contain any viruses at the time of delivery to Intel.
(c) Enlighten has the right to license the Licensed Deliverables to
Intel free of any claims, liens or conflicting rights in favor
of any third party. Enlighten further represents and warrants
that none of the Licensed Deliverables are designated by
Enlighten or its third party licensors as Open Source or are
otherwise subject to the General Public License or analogous
license agreements used to make the Licensed Deliverables or
Derivative Works thereof available as Open Source.
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(d) Enlighten has no reason to believe that the Licensed
Deliverables violates any intellectual property right of any
third party. Enlighten will complete and provide to Intel
Exhibit E and Enlighten represents that all such information
provided to Intel is true and complete in all respects.
(e) Enlighten warrants that the Licensed Software when used in
accordance with their associated documentation, shall be Year
2000 Capable. "Year 2000 Capable" shall mean that the Licensed
Software is capable of correctly processing, providing and/or
receiving data within and between the 20th and 21st centuries,
provided that all other products (for example, hardware,
software, firmware, and/or user data) used with the Licensed
Software properly exchange accurate date data with it. The
foregoing statement shall not apply to a prior version of a
Licensed Software if a more recent version of such Licensed
Software is Year 2000 Capable. In the event that a Licensed
Software is not Year 2000 Capable as specified above, Intel's
sole remedy shall be for Enlighten to repair or replace the
Licensed Software, or if neither of the foregoing is
commercially practical, refund the amounts received by Enlighten
from Intel for the affected Licensed Software.
(f) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, THE LICENSED
SOFTWARE AND THE ACCOMPANYING WRITTEN MATERIALS ARE PROVIDED "AS
IS" WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND. ENLIGHTEN
FURTHER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. ENLIGHTEN DOES NOT WARRANT THAT THE
LICENSED SOFTWARE WILL BE ERROR FREE OR WILL OPERATE WITHOUT
INTERRUPTION.
7. INTELLECTUAL PROPERTY INDEMNIFICATION
[___]
8. TERM AND TERMINATION
8.1 Term: The term of this Agreement shall be Three (3) years beginning on
the Effective Date, which term shall be automatically renewed at the end
of such initial term on the anniversary date of the Effective Date for
additional one (1) year renewal terms, unless terminated by either Party
in writing at least ninety days (90) before any renewal date. Any
reference to the "Agreement Term" in the Agreement shall be deemed to
include any applicable annual renewal term following the initial
three-year term.
8.2 Termination:
(a) Either Party shall have the right to terminate this Agreement
should the other Party materially default in the performance of
any of its obligations if, within thirty (30) days after written
notice, the defaulting Party has failed to cure the default.
(b) In the event that this Agreement is terminated due to
Enlighten's material breach, Enlighten agrees that Intel shall
have the right to continue to use the Licensed Deliverables, and
Trademarks in accordance with the terms set forth in this
Agreement for the shorter of: (i) such time that Intel is able
to find and design-in an alternative product containing
substantially the same functionality as that supplied by
Enlighten hereunder, or (ii) nine (9) months.
(c) After initial acceptance, in the event that, in Intel's sole
discretion, the Licensed Software fails to meet Intel's product
requirements for the Intel Integrated Product(s) at any time
during the Agreement Term, Intel may, upon One Hundred Eighty
(180) days prior written
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notice to Enlighten, terminate this Agreement. In the event of
such termination by Intel, Intel shall forfeit any payments made
to Enlighten as of the date of the notice.
8.3 Effects of Termination or Expiration: In the event of termination or the
expiration of this Agreement, the following provisions will apply:
(a) Post-termination Support: If this Agreement is terminated for
any reason, Enlighten shall continue to provide Support to
Intel's Customer Support personnel as set forth in Exhibit D
during such time as Intel is allowed to clear its channel of any
remaining inventory as set forth in provision (d) below, and
provided that Intel continues to remit payment to Enlighten for
such Support in the form of royalties as defined in this
Agreement.
(b) Return of Intel Enabling Technology: In the event of expiration
or termination of this Agreement for any reason, Enlighten shall
promptly return or destroy, at Intel's option, all copies of the
Intel Enabling Technology, regardless of form and certify to
Intel in writing of the compliance with such return or
destruction.
(c) Source Code Access Upon Termination: In the event of termination
due to any condition set forth in Exhibit H which would trigger
Intel's rights to access and use the Source Code pursuant to the
Source Code Provisions set forth in Exhibit H, Intel shall
receive the Source Code license set forth in Section 2.5.
(d) Other Survival Provisions: The pertinent provisions governing
Survival in Section 8.4 below will also survive.
(e) Licenses: If this Agreement expires or is terminated for any
reason other than as set forth in Section 8.2 (c) above, Intel
will receive a sell-through period of [___] from the date of
expiration or termination during which it may continue to
exercise its license rights under Section 2 above subject to
Intel's payment of applicable royalties. In addition, any and
all licenses granted to end-users as of the date of any
expiration or termination shall survive.
8.4 The following provisions shall survive any expiration or termination of
this Agreement: 1. Definitions; 2. License Grants (but only for a period
of 18 months following any Agreement expiration or termination) 3.
Ownership; 4. Compensation (but only to the extent that such
compensation terms would normally apply to other surviving Agreement
provisions (e.g. - License Grants), 5. Maintenance and Support
Obligations, 7. Intellectual Property Indemnification; 9.
Confidentiality and Non-disclosure, and 10. General Provisions.
Additionally, Intel shall have the right to possess and use a reasonable
number of archive copies of the Licensed Deliverables for the sole
purpose of providing end user customer support and maintenance for the
Intel Integrated Product(s) following any expiration or termination of
the Agreement.
9. CONFIDENTIALITY AND NON-DISCLOSURE
9.1 CONFIDENTIALITY GENERALLY: The existence, terms, and conditions of this
Agreement and either party's Source Code are confidential and neither
Party may make any disclosures regarding this Agreement without the
express prior written consent of the other, with the following
exceptions:
a. subject to (b) below, as otherwise may be required by law or
legal process, to legal and financial advisors in their capacity
of advising a Party in such matters; or
b. during the course of litigation so long as the disclosure of
such terms and conditions are restricted in the same manner as
is the confidential information of other litigating Parties and
so long as (i) the restrictions are embodied in a court-entered
Protective Order and (ii) the disclosing Party informs the other
Party in writing in advance of the disclosure; or
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c. in confidence to its legal counsel, accountants, banks and
financing sources and their advisors solely in connection with
complying with financial transactions or to procure financing
from prospective investors.
To the extent that this Agreement must be filed with any government
regulatory agency, both parties will use reasonable efforts to maintain
the terms of confidentiality as set forth herein, including, but not
limited to, redacting the Agreement such that only those portions
mandated by the government agency are disclosed and obtaining the
non-disclosing Party's review and input prior to any such filing.
9.2 CONFIDENTIAL INFORMATION: Disclosures of confidential and proprietary
information by either Party to the other Party shall be governed by the
Intel Corporate Non-disclosure Agreement ("CNDA") number 5035068, and
related Confidential Information Transmittal Records ("CITR(s)") or
other appropriate written non-disclosure agreements as may be mutually
agreed to and executed by the Parties. Attached as Exhibit G is the
aforementioned CNDA.
10. LIMITATION OF LIABILITY
[___]
11. GENERAL PROVISIONS
11.1 Assignment. Except for the assignment of the Agreement by Enlighten
pursuant to the sale or transfer of all or substantially all of
Enlighten's assets, Enlighten may not assign this Agreement or any
obligations, rights, or benefits hereunder without the express written
consent of Intel which shall not be unreasonably withheld. Intel,
following acceptance of the Licensed Deliverables, at its sole
discretion, may assign this Agreement or any obligations, rights, or
benefits hereunder without the consent of Enlighten provided that Intel
has fully paid up all existing monetary obligations which are due and
owing to Enlighten pursuant to Exhibit C of this Agreement as of the
date of any such assignment.
11.2 Compliance with Laws. Notwithstanding anything contained in this
Agreement to the contrary, the obligations of the Parties shall be
subject to all laws, present and future, of any government having
jurisdiction over the Parties, and to orders, regulations, directions or
requests of any such government.
11.3 Dispute Resolution. All disputes arising directly under the express
terms of this Agreement or the grounds for termination thereof shall be
resolved as follows: The senior management of both Parties shall meet to
attempt to resolve such disputes. If the senior management cannot
resolve the disputes, either Party may make a written demand for formal
dispute resolution and specify therein the scope of the dispute. Within
thirty days after such written notification, the Parties agree to meet
for one day with an impartial mediator and consider dispute resolution
alternatives other than litigation. If an alternative method of dispute
resolution is not agreed upon within thirty (30) days after the one-day
mediation, either Party may begin litigation proceedings.
11.4 Export. In the event product is exported from the United States or
exported/re-exported from a foreign destination by either Party, such
exporting Party shall ensure that the distribution and export/re-export
of product is in compliance with all laws, regulations, orders, or other
restrictions of the U.S. Export Administration Regulations. As of the
Effective Date of this Agreement, Enlighten represents and warrants
that, to the best of its knowledge, the Licensed Deliverables, alone and
not in combination with any other technology or product, do not require
any special export licenses or other U.S. Government regulatory
approvals prior to export from the United States.
11.5 Force Majeure. Neither Party shall be responsible for its failure to
perform due to causes beyond its reasonable control such as acts of God,
fire, theft, war, riot, embargoes, or acts of civil or
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military authorities. If delivery or services are to be delayed by such
contingencies, Enlighten shall immediately notify Intel in writing, and
Intel may, at its option, either (i) extend time of performance or (ii)
terminate the uncompleted portion of the order at no cost to Intel.
11.6 Governing Law. Any claim arising under or relating to this Agreement
shall be governed by the internal substantive laws of the State of
Delaware or federal courts located in Delaware, without regard to
principles of conflict of laws. Jurisdiction. Each Party hereby agrees
to jurisdiction and venue in the courts of the State of California for
all disputes and litigation arising under or relating to this Agreement.
11.7 Independent Development. This Agreement does not preclude Intel or
Enlighten from evaluating, acquiring from third parties not a party to
this Agreement, independently developing or marketing similar
technologies or products, or making and entering into similar
arrangements with other companies. Neither Party is obligated by this
Agreement to make such products or technologies available to the other.
11.8 Notice. All notices required or permitted to be given hereunder shall be
in writing, shall make reference to this Agreement, and shall be
delivered by hand, or dispatched by prepaid air courier or by registered
or certified airmail, postage prepaid, addressed as follows:
Notices to Intel: Notices to Enlighten:
Intel Corporation Enlighten Corporation
Attn: General Counsel ---------------------------
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Attn: Mr. ▇▇▇▇ ▇▇▇▇▇▇▇
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With copies to:
Intel Corporation
Attn: Legal Dept.
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Intel Corporation
Attn: Post Contract Management, MS JF3-149
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Such notices shall be deemed served when received by addressee or, if
delivery is not accomplished by reason of some fault of the addressee,
when tendered for delivery. Either Party may give written notice of a
change of address and, after notice of such change has been received,
any notice or request shall thereafter be given to such Party at such
changed address.
11.9 Relationship of Parties. The Parties hereto are independent contractors.
Neither Party has any express or implied right or authority to assume or
create any obligations on behalf of the other or to bind the other to
any contract, agreement or undertaking with any third party. Nothing in
this Agreement shall be construed to create a partnership, joint
venture, employment or agency relationship between Enlighten and Intel.
11.10 Remedies. Except as set forth in Section 7.3 and 10, then (i) the
remedies set forth in this Agreement are in addition to those available
to either Party at law or in equity, and (ii) all rights and remedies,
legal or equitable, whether conferred hereunder, or by any other
instrument or law will be cumulative and may be exercised singularly or
concurrently.
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11.11 Residuals. Notwithstanding anything herein to the contrary, either Party
may use Residuals for any purpose, including use in the development,
manufacture, promotion, sale and maintenance of its products and
services; provided that this right to Residuals does not represent a
license under any patents or copyrights of the disclosing Party. The
term "Residuals" means information of a general nature, such as general
knowledge, ideas, concepts, know-how, professional skills, work
experience or techniques (not specifics such as exact implementations)
that is retained in the unaided memories of the receiving Party's
employees who have had access to the disclosing Party's information
pursuant to the terms of this Agreement. An employee's memory is unaided
if the employee has not intentionally memorized the information for the
purpose of retaining and subsequently using or disclosing it.
11.12 Severability. The terms and conditions stated herein are declared to be
severable. If any paragraph, provision, or clause in this Agreement
shall be found or be held to be invalid or unenforceable in any
jurisdiction in which this Agreement is being performed, the remainder
of this Agreement shall be valid and enforceable and the Parties shall
use good faith to negotiate a substitute, valid and enforceable
provision which most nearly effects the Parties' intent in entering into
this Agreement.
11.13 Waiver. Failure by either Party to enforce any term of this Agreement
shall not be deemed a waiver of future enforcement of that or any other
term in this Agreement or any other agreement that may be in place
between the Parties.
11.14 Entire Agreement. The terms and conditions of this Agreement, including
its exhibits, constitutes the entire agreement between the Parties with
respect to the subject matter hereof, and merges and supersedes all
prior and contemporaneous agreements, understandings, negotiations and
discussions. Neither of the Parties shall be bound by any conditions,
definitions, warranties, understandings, or representations with respect
to the subject matter hereof other than as expressly provided herein.
The section headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. No oral explanation or oral
information by either Party hereto shall alter the meaning or
interpretation of this Agreement. No amendments or modifications shall
be effective unless in a writing signed by authorized representatives of
both Parties. These terms and conditions will prevail notwithstanding
any different, conflicting or additional terms and conditions which may
appear on any purchase order, acknowledgment or other writing not
expressly incorporated into this Agreement. In the event of any conflict
between the terms and conditions set forth in this Exhibit A and any
other Exhibit of this Agreement, the Exhibit A terms and conditions
shall govern, unless the other Exhibit expressly states that it governs.
This Agreement may be executed in two (2) or more counterparts, all of
which, taken together, shall be regarded as one and the same instrument.
INTEL / ENLIGHTEN CONFIDENTIAL
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EXHIBIT "B"
LICENSED SOFTWARE DESCRIPTION AND SPECIFICATIONS
DESCRIPTION OF LICENSED DELIVERABLES
The following table lists the deliverables classified as Licensed Deliverables.
The relevant sections of Exhibit F (SOW) and the applicable sections of the
License Grant are also shown.
[___]
INTEL UNIQUE TECHNOLOGY
The following table lists the deliverables classified as Intel Unique
Technology. The relevant sections of Exhibit F (SOW) and the applicable
sections of the License Grant are also shown.
[___]
DESCRIPTION OF DEVELOPMENT TOOLS PROGRAM
The development tools required to build the developed source code are a
combination of commercially available tools and Enlighten proprietary tools. The
commercially available tools are:
GNU C Compiler (gcc)
GNU C++ Compiler (g++)
GNU C/C++ Object Module Linker
Microsoft Visual C++ Compiler
GNU make (gmake)
The Enlighten proprietary tools are:
EMK Make - Enlighten's Proprietary build system
DESCRIPTION OF INTEL ENABLING TECHNOLOGY
The following table lists the deliverables classified as Intel Enabling
Technology. The relevant sections of Exhibit F (SOW) and the applicable sections
of the License Grant are also shown.
INTEL / ENLIGHTEN CONFIDENTIAL
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[___]
SPECIFICATIONS
The Licensed Deliverables will meet the specifications set forth in the then
current Enlighten data sheet for respective Licensed Deliverable as augmented by
any applicable specifications set forth in any Statement of Work agreed upon by
the parties under the provisions of this Agreement. Such data sheets and
Statements of Work are made part of this Agreement by this reference.
INTEL / ENLIGHTEN CONFIDENTIAL
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EXHIBIT "C"
COMPENSATION AND PAYMENT PROVISIONS
Subject to Enlighten's compliance with the terms and conditions of this
Agreement and in consideration for the rights and licenses granted by Enlighten
and the obligations assumed hereunder, Intel will compensate Enlighten as
follows:
1.0 INTEL INTEGRATED PRODUCT ROYALTIES: In connection with Intel's
distribution of Intel Integrated Product, Intel will pay Enlighten a
royalty based upon [___] pursuant to the following models. Each model is
exclusive of the others, based upon the final Beta NRE payment made to
Enlighten by Intel pursuant to Section 9 of this Exhibit C. In no case
shall Royalties payable to Enlighten under any of the following Royalty
models exceed [___] from the Intel Integrated Product:
(a) Royalties on the [___] from the Intel Integrated Product(s) will
be [___]. Thereafter and continuing for the lifespan of the
Intel Integrated Product(s), the royalty shall be [___]. This
Royalty model assumes Intel's full payment of the [___] Beta NRE
payment without any penalty deductions.
(b) In the event that the Beta NRE payment is decreased to [___] as
provided in Section 9 (a) below, the royalty on the [___] from
the Intel Integrated Product(s) will be [___]. Thereafter and
continuing for the lifespan of the Intel Integrated Product(s),
the royalty shall be [___].
(c) In the event that the Beta NRE payment is decreased to [___] as
provided in Section 9 (a) below, the royalty on the [___] from
the Intel Integrated Product(s) will be [___]. Thereafter and
continuing for the lifespan of the Intel Integrated Product(s),
the royalty shall be [___].
(d) If, in its sole discretion, Intel packages the Intel Integrated
Product with other Intel Products or third-Party products or
services, and that package is sold as an option, under a single
price, to Intel Product customers, then the royalty for such
Intel Integrated Product distribution as a component of an
"option package" shall be negotiated by the Parties
(e) Notwithstanding the provisions of any of the Royalty Models set
forth above, for an Intel Product bundle consisting of the Intel
Integrated Product with Intel's Remote Server Management card,
the royalty rate shall be [___] by Intel from such bundle. [___]
2.0 QUARTERLY REPORTS AND PAYMENTS: During the Term of this Agreement,
within fifteen (15) calendar days following the end of any calendar
quarter during which Intel sells any Licensed Software in the form of an
Integrated Intel Product, or such Licensed Software is credited for
return, Intel shall provide a brief report ("Report") of such activity
to Enlighten that lists the number of copies of the Licensed Software
sold and the applicable royalty therefor, or, as the case may be,
returned in that quarter, and the total amount of royalty owed to
Enlighten or credited to Intel therefor. If any royalties are due
Enlighten in such calendar quarter, Intel shall remit such payment to
Enlighten with the corresponding report within forty-five (45) calendar
days following the end of such calendar quarter. If any return credits
accrue to Intel and if there are no payments against which such credits
may be offset, such credits may be carried forward indefinitely by Intel
in subsequent accounting periods. Returns: Intel shall be credited the
full amount of any royalty accrued on any returned or destroyed copies
of the Licensed Software that Intel, in its sole discretion, authorizes
for such return or destruction.
3.0 ROYALTY FREE COPIES: Intel shall owe no royalty or other payment to
Enlighten in connection with Licensed Software copies that are given to
end-users as evaluation copies for a limited duration of time (not to
exceed 90 calendar days) and/or for a limited purpose of use. In
addition, Intel shall owe no royalty or other payment to Enlighten in
connection with any Licensed Software copies used
INTEL / ENLIGHTEN CONFIDENTIAL
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internally for development or support or given to third Parties for the
sole and exclusive purpose of testing, reviewing, or promoting
Integrated Intel Products or for philanthropic or charitable reasons.
4.0 CONSULTING SERVICES: The rate for any consulting services provided by
Enlighten to Intel pursuant to this Agreement and lasting less than
thirty (30) consecutive calendar days shall be [___] per consultant per
day plus reasonable travel and lodging expenses (per Intel's standard
travel and lodging guidelines which shall be provided to Enlighten upon
request). For consulting services on engineering projects/tasks lasting
more than thirty (30) consecutive calendar days in duration, the rate
shall be [___] per consultant per month, plus reasonable travel and
lodging expenses (per Intel's standard travel and lodging guidelines
which shall be provided to Enlighten upon request). Additionally, upon
execution of this Agreement, Enlighten agrees, at Intel's option, to
supply Intel with two (2) consultants for a period of up to six (6)
months pursuant to a separate agreement between the Parties. Reasonable
travel includes Enlighten employees returning to their homes once a
week.
5.0 TRAINING: The rate for any training services provided by Enlighten to
Intel pursuant to this Agreement shall be [___] per instructor per day
for onsite training services, plus reasonable travel expenses (per
Intel's standard travel and lodging guidelines which shall be provided
to Enlighten upon request).
6.0 SUPPORT PENALTIES: Under the provisions of Exhibit D (provision A (2)),
if during any quarter, any Support penalties are assessed by Intel, each
such penalty shall result in a royalty reduction of that quarter's total
royalties due from Intel by [___]. Such Support penalties are cumulative
and remain in effect until resolved. Assessment of any Support penalties
will not affect Intel's right to receive and Enlighten's obligation to
provide continued Support and Updates as set forth in the Agreement.
7.0 MFC PRICE: Intel will receive price terms equal to or better than any
such price terms offered to any Enlighten customer for substantially the
same Enlighten products and/or the same services to the products and/or
services being provided to Intel. In connection with this provision,
Enlighten represents and warrants that Intel will receive Enlighten's
Most Favored Customer Price for all services under such designation and
if Intel has a reasonable cause to question such representation and
warranty, Intel will have a limited audit right to require Enlighten to
produce the applicable terms of such agreements with such other
customers upon Intel's request.
8.0 NO OTHER COMPENSATION: Except as specifically set forth in this Exhibit,
no other royalty, compensation, contingent payments or reimbursement
will be due or payable to or on behalf of Enlighten from Intel in
connection with any Enlighten Licensed Deliverable or Derivative Work
therefrom or the distribution thereof, or for any Support, Update, NRE,
or other services rendered hereunder.
9. INITIAL CUSTOM PRODUCT DEVELOPMENT AND INTEGRATION: Intel agrees to pay
Enlighten the sum of [___] for the custom product development and
integration work as set forth in the SOW. Payment shall be made [___]
which shall be due and payable upon Intel's acceptance of the beta
version of the Integrated Intel Product. Upon Intel's acceptance of the
final version of the Intel Integrated Product, Intel shall make [___].
(a) In the event that Enlighten's delivery of the beta version
of the Intel Integrated Product is more than [___] days late as
measured from the scheduled delivery date set forth in the SOW
(Exhibit H), the [___] payment due Enlighten as set forth above
shall be reduced [___]. In the event that such beta delivery is
more than [___] days late, the [___] payment shall be further
reduced [___]. Notwithstanding the foregoing, none of the
foregoing penalties shall be applicable if the failure of
Enlighten to meet the scheduled beta delivery date is directly
attributable to Intel's failure to provide the necessary Intel
technology to Enlighten. Below are listed the anticipated
delivery dates for the respective Intel Enabling Technology:
[___]
INTEL / ENLIGHTEN CONFIDENTIAL
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(b) If Enlighten's Beta Deliverables to Intel are delayed by
Intel's failure to deliver the necessary integrating technology
to Enlighten in accordance with the Intel delivery schedule as
noted in Section 9(a) above, or if Intel is unable to test the
Beta Deliverables for any reason, Intel shall not delay the
acceptance of the Beta Deliverables or the [___]. In such case,
Enlighten will notify Intel within five (5) working days if any
late delivery by Intel will prevent Enlighten from meeting the
Beta Deliverable date. Such notice shall clearly indicate which
of the specific portions of the Beta Deliverables are affected
by the late deliverable. Enlighten will use commercially
reasonable best efforts to reduce the impact of any such late
delivery by Intel, however, the entire Beta Deliverables will be
deemed accepted based on the acceptance of the portions of the
Beta Deliverables which are independent of the delayed portions
of Intel's integrating technology.
10. INITIAL PRODUCT VALIDATION AND INTEGRATION: Enlighten shall provide
Intel with engineering resources to complete the initial product
validation and integration for the Integrated Intel Product(s) pursuant
to the contracted support arrangements. Support prior to the Effective
Date of this agreement shall be considered a cost of gaining Intel as a
customer and no integration/validation payment will be made for the work
done prior to the Effective Date of this agreement.
INTEL / ENLIGHTEN CONFIDENTIAL
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EXHIBIT "D"
SUPPORT REQUIREMENTS
Support for Intel's product support team in issues relating to the
Enlighten Licensed Deliverables incorporated into Intel Products:
1. Intel takes first-line end-user calls. If Intel is unable to solve a
customer's problem, Enlighten will assist Intel by telephone. Such
assistance will be available to Intel continuously, at no cost, during
Enlighten's normal business hours. The escalation procedure for problems
which Intel is unable to resolve is as set forth in provision "A" below.
(A) Enlighten provides escalation path for Intel support
technicians. Note that all time frames listed below assume that
correction of the specified problem is possible within the
allowed time frame. Enlighten commits to meeting these time
frames. If a fix or workaround is not possible within the
allowed time frame, subject to Intel's approval as to timing,
Enlighten will work with Intel product support personnel to
provide an estimate of the time required to correct the problem
and will report regularly to Intel until corrective action is
complete. Penalties will be assessed based on failure to meet
initial response times and failure to show reasonable effort in
correcting problems.
(1) Problem severity and expected response time:
(a) If a [___] occurs in the Enlighten Deliverable,
Enlighten must respond within [___] with an
acknowledgment of the error and provide a fix or
workaround within [___] is one that results in a
user-down situation causing disruption of an
end-user's normal network.
(b) If an [___] occurs in the Enlighten Deliverable,
Enlighten must respond within [___] with an
acknowledgment of the error and provide a
solution within [___] is one that degrades the
basic services of the Intel product and for
which no convenient workaround is available.
(c) If a [___] occurs in the Enlighten Deliverable,
Enlighten must respond within [___] with an
acknowledgment of the error and provide a
solution within [___] is one that causes
end-users to initiate complaints to Intel
relating to incorrect or missing information.
(d) If a [___] occurs in or a [___] regarding an
Enlighten Deliverable, Enlighten must respond
within [___] with an acknowledgment of the [___]
and will categorize it within [___].
INTEL / ENLIGHTEN CONFIDENTIAL
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(e) The milestones below are based on the indicated
working days after the problem is reported to
Enlighten and all required supporting technical
data has been supplied to Enlighten. For
purposes of this provision, the required
supporting technical data shall be deemed to
consist of the following:
(i) A description of the error;
(ii) How to reproduce the error. If the error
consists of a documentation error, where
the error may be found;
(iii) A description of what is believed the
correct result should be; and,
(iv) The severity classification of the
problem discovered.
[___]
(2) Penalties: If Enlighten fails to meet any Support
milestones as set forth in this Provision (A), Enlighten
shall be penalized [___] of the quarterly royalties
which would normally have been due from Intel during
such quarter in which the failure to meet the support
milestone occurs and the respective penalty becomes
applicable. Penalties are per each unique technical
incident and continue to be applicable from quarter to
quarter until such time as Enlighten remedies the
incident giving rise to the penalty.
2. TERM OF SUPPORT OBLIGATIONS
Enlighten agrees to perform the support obligations set forth herein for
the term of the Agreement and for a period of [___] following any
termination thereof as set forth in Exhibit A, Section 8.3 unless the
term of this Exhibit "D' is otherwise extended by the Parties in
writing.
3. Future LICENSED SOFTWARE Requirements and Statements of Work:
During the term of this Agreement, Intel and Enlighten mutually agree to
meet on a periodic basis, but in no event less than semi annually, to
share product directions/roadmaps for their respective products (i.e.,
the Licensed Software and Integrated Intel Product(s)), channels, market
segments and marketing messaging to jointly assess where there may exist
differences in either customer requirements and/or roadmap timelines,
and to provide input to each other regarding development of each Party's
roadmaps/timelines to more effectively align the Licensed Software with
Intel's needs for Integrated Intel Product(s). For features and/or
functionality which are required by Intel for Intel's Integrated Intel
Products and which are not on Enlighten's roadmap for inclusion with the
Licensed Software, at Intel's request, Enlighten and Intel shall
mutually work to develop an appropriate SOW for the development and
inclusion of such features and/or functionality in the Licensed
Software. Engineering NRE rates for such SOWs shall be at the rates set
forth in Exhibit C. If Enlighten and Intel are unable to agree on any
significant aspect of a SOW (e.g., timeline, resources required, price)
for any features/functionality required by Intel which is not on
Enlighten's roadmap, such issues shall immediately be escalated to the
Executive Contacts below for resolution. If the Executive Contacts are
unable to reach
INTEL / ENLIGHTEN CONFIDENTIAL
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resolution, the matter may be further escalated. In the event that Intel
requests Enlighten to pull in the availability/inclusion of a specific
feature and/or functionality which is included on the Enlighten roadmap
for the Licensed Software, the Parties shall, on a case by case basis,
mutually agree upon an appropriate SOW, timeline, and NRE.
Intel Executive Contact: Enlighten Executive Contact:
-------------------------- ---------------------------
Printed Name Printed Name
-------------------------- ---------------------------
Title Title
-------------------------- ---------------------------
Phone Phone
-------------------------- ---------------------------
Fax Fax
4. ADDITIONAL ENGINEERING SUPPORT - Enlighten shall provide the following
additional support to Intel during the Agreement term. Unless expressly
specified otherwise, such support shall be at no additional cost to
Intel beyond that specified in section 4.9:
A. Support for the Initial Integration of the Licensed Deliverables
- Enlighten will provide Intel with all engineering support
necessary to perform the initial integration of the Licensed
Deliverables with the designated Intel Products as set forth in
Exhibit F - Statement of Work.
B. Support for Integration of future Licensed Deliverables releases
- Enlighten will provide Intel with engineering support to
integrate all future Licensed Deliverable releases during the
term of the Agreement and any renewal term thereof. Such future
releases shall be provided on a timely basis, and shall be
"integration enabled" to the same extent as the initial accepted
Licensed Deliverables for the Integrated Intel Product provided
pursuant to this Agreement and at or before such time that
Enlighten makes such release generally available to its other
customers.
C. Timely notification of errors and provision of maintenance
releases - Enlighten shall provide Intel with timely
notifications of any errors, anomalies or other such
irregularities with the Licensed Deliverables and will provide
Intel with all maintenance releases no later than such
maintenance releases are provided to Enlighten's other
customers. If available, Enlighten will provide Intel with their
"beta" maintenance releases to facilitate early issue
identification and testing with the Integrated Intel Products.
5. TRAINING If requested by Intel, for each major release of the Licensed
Deliverables, Enlighten shall provide Intel with up to one week of
training to Intel at the rates set forth in Exhibit C. The parties shall
mutually agree upon the timing and location of such training. At a
minimum, all such training shall be provided in a timeframe that will
support Intel's release of Intel Integrated Products or any Updates
thereto.
6. BETA DELIVERABLE ACCEPTANCE PROCESS - Unless otherwise specified in any
applicable Statement of Work, the following shall constitute the
Acceptance Process for any release of Beta Deliverables. The Parties
agree to jointly meet and collaborate on activities and processes which
will expedite the development and delivery of the Beta Deliverables so
as to meet the dates set forth in the Statement of Work. The provisions
governing Intel's Acceptance are as follows:
A. Initial Intel Response: On delivery by Enlighten of the Beta
Deliverable, Intel has [___] in which to reject or accept the
Enlighten Beta Deliverable. During this period, Intel, if
desired, will evaluate the Enlighten Beta Deliverable and test
it against the relevant Statement of Work, warranty or
specifications, if any. Any testing or acceptance of a Enlighten
Beta Deliverable by Intel, however, shall not
INTEL / ENLIGHTEN CONFIDENTIAL
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constitute a waiver of any right should Intel later discover any
defect, variation, nonconformity or breach with respect to such
Enlighten Beta Deliverable, and neither shall any testing or
acceptance by Intel prejudice any other Intel right or Enlighten
obligation hereunder, including those under indemnification as
discussed in Exhibit A, Section 7.
B. Initial Acceptance: If Intel accepts the Enlighten Beta
Deliverable, it will promptly notify Enlighten of its
acceptance. If Intel fails to accept or reject the Enlighten
Beta Deliverable within [___], the Enlighten Beta Deliverable is
deemed accepted.
C. Initial Rejection: If Intel, for any reason, rejects any
Enlighten Beta Deliverable, its rejection must be in writing and
must specify the nature of the defect.
D. Acceptance Criteria: In order to qualify for acceptance,
Enlighten must provide the Beta Deliverables according to the
criteria defined below and any other requirements contained in
SOW.
1. No known Critical problems remain unresolved;
2. A list of any known Important, Minor or Discretionary
problems with an action plan in place to resolve them;
and
3. The Deliverable is demonstrated to Intel representatives
to illustrate that it meets a satisfactory level of
functionality per the SOW.
4. If Enlighten's Beta Deliverables to Intel are delayed by
Intel's failure to deliver the necessary integrating
technology to Enlighten in accordance with the Intel
delivery schedule as noted in Exhibit C, Section 9(a),
or if Intel is unable to test the Beta Deliverables for
any reason, Intel shall not delay the acceptance of the
Beta Deliverables or [___]. In such case, Enlighten will
notify Intel within [___] if any late delivery by Intel
will prevent Enlighten from meeting the Beta Deliverable
date. Such notice shall clearly indicate which of the
the specific portions of the Beta Deliverables are
affected by the late deliverable. Enlighten will use
commercially reasonable best efforts to reduce the
impact of any such late delivery by Intel, however, the
entire Beta Deliverables will be deemed accepted based
on the acceptance of the portions of the Beta
Deliverables which are independent of the delayed
portions of Intel's integrating technology.
7. LICENSED DELIVERABLES ACCEPTANCE PROCESS - Unless otherwise specified in
any applicable Statement of Work, the following shall constitute the
Acceptance Process for any release of the Licensed Deliverables by
Intel. The Parties agree that Intel's acceptance of the Enlighten
Deliverables is a material condition precedent to Intel's obligations
under this Agreement. The provisions governing Intel's Acceptance are as
follows:
A. Initial Intel Response: On receipt by Intel of any Enlighten
Licensed Deliverable, Intel has [___] in which to reject or
accept the Enlighten Licensed Deliverable. During this period,
Intel will evaluate the Enlighten Licensed Deliverable and test
it against the relevant Statement of Work, warranty or
specifications, if any. In the case of Updates, Intel's
acceptance remains in Intel's sole discretion. Any testing or
acceptance of a Enlighten Licensed Deliverable by Intel,
however, shall not constitute a waiver of any right should Intel
later discover any defect, variation, nonconformity or breach
with respect to such Enlighten Licensed Deliverable, and neither
shall any testing or acceptance by Intel prejudice any other
Intel right or Enlighten obligation hereunder, including those
under indemnification as discussed in Exhibit A, Section 7.
B. Initial Acceptance: If Intel accepts the Enlighten Licensed
Deliverable, it will promptly notify Enlighten of its
acceptance. If Intel fails to accept or reject the
INTEL / ENLIGHTEN CONFIDENTIAL
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Enlighten Deliverable within [___], the Enlighten Licensed
Deliverable is deemed accepted.
C. Initial Rejection: If Intel, for any reason, rejects any
Enlighten Licensed Deliverable, its rejection must be in writing
and must specify the nature of the defect.
D. Intent To Correct: If Intel provides Enlighten with written
notice of rejection, Enlighten must respond to Intel within
[___] of receiving that notice by communicating its intent to
correct the Enlighten Deliverable. If Enlighten fails to
indicate such intent, Enlighten will be deemed to be in breach
of the Agreement.
E. Acceptance Criteria: In order to qualify for acceptance,
Enlighten must provide the Licensed Deliverables according to
the criteria defined below and any other requirements contained
in SOW.
1. No known Critical or Important problems remain
unresolved;
2. A list of any known Minor problems with an action plan
in place to resolve them; and
3. The Licensed Deliverables are demonstrated to Intel
representatives to illustrate high quality per the
functionality of the SOW
F. Enlighten's Cure: After providing notice to Intel of its intent
to correct the rejected Enlighten Deliverable, Enlighten has
[___] from the date of its receipt of Intel's notice of initial
rejection to correct the Enlighten Licensed Deliverable and to
submit the corrected version to Intel for acceptance under the
provisions set forth in this Exhibit D, Section 6. Any
resubmission of a Enlighten Licensed Deliverable by Enlighten
must be made in good faith and must evidence substantial
directed efforts to correct Intel's identified basis of the
defect.
G. Enlighten's Failure To Cure: If at the end of the [___] period,
Enlighten has failed to cure the defect in the Enlighten
Licensed Deliverables and has failed to show reasonable effort
to cure or has failed to secure an executed modification of the
Statement of Work from Intel, warranty or specification for that
Enlighten Licensed Deliverable, Intel, at its sole discretion,
may terminate this Agreement under the provisions of Exhibit A,
Section 8 or may send Intel engineering personnel to Enlighten
where Enlighten shall provide such Intel personnel with access
to the Licensed Deliverable Source Code to assist Enlighten with
its efforts to cure the defect. If Intel accesses the Source
Code, then Intel will receive the Source Code License described
in Exhibit A, Section 2, including the Object Code distribution
rights to the Derivative Work which was the subject of the
Statement of Work, warranty or specification. In such event,
Intel must complete a substantial majority of the work described
in the Statement of Work, warranty or specification. If Intel
fails to complete a substantial majority of work, then Intel
shall receive no license to Enlighten's Intellectual Property
Rights in the Enlighten Deliverables from which the Derivative
Work was created.
INTEL / ENLIGHTEN CONFIDENTIAL
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EXHIBIT "E"
CERTIFICATE OF ORIGINALITY
This questionnaire must be completed by the company official furnishing a
software material (program product or offering and related documentation, or
other software material) for Intel.
One questionnaire can cover one complete product, even if that product includes
multiple modules. However, a separate questionnaire must be completed for the
code and another for its related documentation (if any).
Please do not leave any questions blank. Write "not applicable" or "N/A" if a
question is not relevant to the furnished software material.
1. Name of the software material (provide complete identification,
including version, release and modification numbers for programs and
documentation):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
2. Was the software material or any portion thereof written by any Party
other than Enlighten, or Enlighten's employees working within their job
assignment?
Yes X No
--- ---
If yes, provide the following information:
(a) Indicate if the whole software material or only a portion
thereof was written by such Party, and identify such portion:
[___]
(b) Specify for each involved Party:
[___]
(iv) If the Party is a company, how did it acquire title to
the software material (e.g., software material was
written by company's employees as part of their job
assignment)?
In both instances the products were developed by the
company's employees within the scope of their employment
with each respective company.
(v) If the Party is an individual, did s/he create the
software material while employed by or under contractual
relationship with another Party?
Yes No X
----- -----
If Yes, provide name and address of the other Party and
explain the nature of the obligations: N/A
(c) How did Enlighten acquire title to the software material written
by the other Party?
Both parties were acquired for a combination of cash and
royalties based upon product revenue. As of this writing,
both parties have been fully paid for the
1 Intel Confidential
22
products and there are no future commitments for royalties or
any other remuneration to either party.
3. Was the software material or any portion thereof derived from any third
party's pre-existing materials?
Yes No X
----- -----
If yes, provide the following information for each of the pre-existing
materials:
(a) Name of the materials:
N/A
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
(b) Owner:
N/A
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
(c) How did Enlighten get the right to use the pre-existing
material(s)?
N/A
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
4. Identify below, or in an attachment, any other circumstances which might
affect Intel's ability to reproduce and market this software product,
including:
(a) Confidentiality or trade secrecy of pre-existing materials:
N/A
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
(b) Known or possible royalty obligations to others:
N/A
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
(c) Pre-existing materials developed for another Party or customer
(including government) where Enlighten may not have retained
full rights to the material:
N/A
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
(d) Materials acquired from a person or company possibly not having
title to them:
N/A
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
(e) Other circumstances:
N/A
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
INTEL / ENLIGHTEN CONFIDENTIAL
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COMPANY
--------------------------------
Signature
--------------------------------
Printed Name
--------------------------------
Title
--------------------------------
Date
INTEL / ENLIGHTEN CONFIDENTIAL
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EXHIBIT F
[___]
INTEL / ENLIGHTEN CONFIDENTIAL
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EXHIBIT H
SOURCE CODE PROVISIONS
This Exhibit H is intended to be part of the Software License and Development
Agreement between Enlighten and Intel ("Agreement"). Within thirty (30) days
from the Effective Date of this Agreement, Enlighten and Intel shall execute the
Escrow Agreement set forth below with Data Securities International, Inc. In the
event of any conflict between the terms of the Escrow Agreement and those of the
Agreement, those of the Agreement will control.
THIS AGREEMENT ("Escrow Agreement") is executed as of this _________ day
of __________________, 1999 by and among Enlighten Software Solutions,
Inc. ("Enlighten"), Intel Corporation ("Reseller"), and Data Securities
International, Inc., ("Escrow Agent"), as Escrow Agent. The effective
date of this Escrow Agreement shall be the date last signed below (the
"Effective Date").
WHEREAS Enlighten and Reseller have entered into a Software Development
and License Agreement # 1308605 dated October 15, 1999 thereto
(collectively, the "Agreement") pursuant to which Enlighten has licensed
to Reseller the right to distribute certain Deliverables (as defined in
the Agreement and referred to herein as the "Software") and related
materials for a certain period of time;
WHEREAS the Agreement requires Enlighten and Reseller to enter into an Escrow
Agreement with an escrow agent chosen by Enlighten which provides for
Enlighten's deposit of one copy of the source code of Software (the "Source
Code"), as modified from time to time in accordance with the terms of the
Agreement. The Agreement provides that, under circumstances to be specified in
this Escrow Agreement, Reseller may obtain the escrowed Source Code from the
Escrow Agent solely for the purpose of making modifications, performing
maintenance, providing support to end user customers, or making bug fixes, as
applicable;
WHEREAS Enlighten wishes to insure that development, maintenance and support for
Enlighten's Software, as modified from time to time in accordance with the terms
of the Agreement are available upon the occurrence of an Escrow Event (as
defined in the Agreement); and
WHEREAS Escrow Agent is in the business of providing third party software escrow
protection by storing, retaining and allowing limited access to proprietary
technology, related media and materials.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained
herein, and for other good and valuable consideration, receipt of which is
hereby acknowledged, the parties agree as follows:
1. DEPOSIT OF DOCUMENTATION
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1.1 The term "Source Code" as used in this Escrow Agreement means
the source code, in modifiable form, in human readable format
that will enable a third party programmer skilled in the art to
be able to modify, maintain or enhance the Software without
further assistance or references to other materials.
1.2 Enlighten will place each new release of Software into an escrow
account. Reseller's access to such source and object code will
be allowed only after an Escrow Event has occurred. Cost of
Software Escrow to be borne by Reseller.
1.3 The term "Deposit" as used in this Escrow Agreement means the
Source Code deposited with Escrow Agent by Enlighten pursuant to
this Escrow Agreement.
2. REVISIONS AND MAINTENANCE
2.1 Enlighten agrees to deposit with Escrow Agent a copy of all new versions
of the Source Code prepared by Enlighten within forty-five (45) business
days after such new versions are made available to the general public by
Enlighten. Such revisions shall be deposited in a sealed package
certified by an authorized officer of Enlighten to contain a complete
copy of such new versions.
2.2 Escrow Agent shall acknowledge delivery of new versions hereunder by
sending written acknowledgment thereof to both Enlighten and Reseller.
3. STORAGE AND SECURITY
3.1 Escrow Agent shall act as custodian of the Deposit until the escrow is
terminated pursuant to Section 11 ("Termination") of this Escrow
Agreement. Escrow Agent shall establish, under its control, a secure
receptacle for the purpose of storing the Deposit.
3.2 The Deposit shall remain the exclusive property of the Enlighten,
subject only to the licenses provided in this Escrow Agreement.
3.3 Escrow Agent shall not divulge, disclose or otherwise make available the
Deposit to any parties other than those persons duly authorized in
writing by a competent officer of Enlighten, except as provided in this
Escrow Agreement.
3.4 Escrow Agent shall not permit any person access to the Deposit except as
may be necessary for Escrow Agent's authorized representatives to
perform under this Escrow Agreement.
3.5 Access to the Deposit shall not be granted without compliance with all
security and identification procedures instituted by Escrow Agent.
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3.6 Escrow Agent shall have no obligation or responsibility to verify or
determine that the Deposit does, in fact, consist of those items which
Enlighten is obligated to deliver, under any agreement, and Escrow Agent
shall bear no responsibility whatsoever to determine the existence,
relevance, completeness, currency, or accuracy of the Deposit.
3.7 Escrow Agent's sole responsibility shall be to accept, store and deliver
the Deposit, in accordance with the terms and conditions of this Escrow
Agreement.
3.8 If any of the Deposit shall be attached, garnished or levied upon
pursuant to an order of court, or the delivery thereof shall be stayed
or enjoined by an order of court, or any other order, judgment or decree
shall be made or entered by any court affecting the relevant Deposit or
any portion thereof, Escrow Agent is hereby expressly authorized in its
sole discretion to obey and comply with all orders, judgments or decrees
so entered or issued by any court, without the necessity of inquiring
whether such court had jurisdiction, and in case Escrow Agent obeys or
complies with any such order, judgment or decree, Escrow Agent shall not
be liable to Enlighten or any third party by reason of such compliance,
notwithstanding that such order, judgment or decree may subsequently be
reversed, modified or vacated.
4. RELEASE OF DEPOSIT
4.1 Upon the occurrence of any Escrow Event, Reseller may deliver to Escrow
Agent a written notice of such Escrow Event (a "Notice"), and Escrow
Agent shall provide a copy of such Notice to Enlighten within one (1)
business day of receipt from Reseller. Unless Enlighten shall have
provided Contrary Instructions (as defined below) to Escrow Agent within
five (5) business days after receipt of Escrow Agent's notice, the
relevant Deposit shall be delivered to Reseller by Escrow Agent within
the next five (5) business days following the end of such five (5)
business day period. Such delivery of the Source Code will terminate all
duties and obligations of Escrow Agent to Enlighten and Reseller with
respect to the Source Code so delivered; provided that if Enlighten
cures the Escrow Event to the reasonable satisfaction of Reseller within
sixty (60) days of the occurrence of the Escrow Event, then Reseller
shall return the Source Code to Escrow Agent for retention under this
Agreement, and Reseller shall have no further right to use such Source
Code unless and until the occurrence of a subsequent Escrow Event.
4.2 "Contrary Instructions" for the purposes of this Escrow Agreement means
a notarized affidavit executed by an official of Enlighten stating that
the Escrow Event or Escrow Events specified in Reseller's Notice have
not occurred, or have been cured.
4.3 Upon timely receipt of such Contrary Instructions, Escrow Agent shall
not release the Deposit, but shall continue to store the Deposit until
otherwise directed by Reseller and Enlighten jointly, or until
resolution of the dispute pursuant to Section 5 ("Dispute Resolution")
of this Escrow Agreement, or by a court of competent jurisdiction.
5. DISPUTE RESOLUTION
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Enlighten and Reseller agree that if Contrary Instructions are timely
given by Enlighten pursuant to Section 4 ("Release of Deposit") hereof,
then Enlighten and Reseller shall submit their dispute regarding
Reseller's Notice to arbitration by a single arbitrator who is a member
of the American Arbitration Association, according to its rules and
regulations then in effect. Such arbitration shall take place in San
Mateo, California. The decision of the arbitrator shall be final and
binding upon the parties and enforceable in any court of competent
jurisdiction, and a copy of such decision shall be delivered immediately
to Enlighten, Reseller and Escrow Agent. The parties shall use their
best efforts to commence the arbitration proceeding within ten (10)
business days following delivery of the Contrary Instructions. The sole
question to be determined by the arbitrator shall be whether or not
there existed an Escrow Event at the time Reseller delivered the Notice
under Section 4 ("Release of Deposit"), and, if so, whether such Escrow
Event has been cured. If the arbitrator finds that an uncured Escrow
Event exists, Escrow Agent shall promptly deliver the Deposit to
Reseller. Depositions may be taken and discovery obtained in any such
arbitration proceedings in accordance with California Code of Civil
Procedure ("CCP") Sections 1283.05 and 1283.1. All fees and charges by
the American Arbitration Association and the reasonable attorneys' fees
and costs incurred by the prevailing party in the arbitration shall be
paid by the non prevailing party. Judgment upon the award rendered by
the arbitrator(s) may be entered into any court having jurisdiction
thereof. Notwithstanding the foregoing, either party shall have the
right to obtain a preliminary judgment on any equitable claim in any
court of competent jurisdiction, where such judgment is necessary to
preserve property or proprietary rights under this Escrow Agreement.
Such judgment shall remain effective as long as the terms of the
judgment so provide or until specifically superseded by the action of
the arbitrator(s) as provided above.
6. BANKRUPTCY
Enlighten and Reseller acknowledge that this Escrow Agreement is an
"agreement supplementary to" the Agreement as provided in Section 365(n)
of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code (the "Bankruptcy Code"). Enlighten
acknowledges that if Enlighten as a debtor in possession or a trustee in
bankruptcy in a case under the Bankruptcy Code rejects the Agreement or
this Escrow Agreement, Reseller may elect to retain its rights under the
Agreement and this Escrow Agreement as provided in Section 365(n) of the
Bankruptcy Code. Upon written request of the Reseller to Enlighten or
the Bankruptcy Trustee, Enlighten or such Bankruptcy Trustee shall not
interfere with the rights of Reseller as provided in the Agreement and
this Escrow Agreement, including the right to obtain the Deposit from
Escrow Agent.
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7. ESCROW EVENTS
The term "Escrow Event" as used in this Escrow Agreement means (i) a
material breach by Enlighten of its support obligations under the
Agreement (to the extent such breach entitles Reseller to impose a
penalty pursuant to Exhibit D, Section 1A of the Agreement); (ii)
Enlighten ceases to exist; or (iii) Enlighten becomes insolvent or files
or has filed against it a petition in bankruptcy.
8. INDEMNIFICATION
Enlighten and Reseller jointly and severally agree to defend and
indemnify Escrow Agent and to hold Escrow Agent harmless from and
against any and all claims, actions and suits, whether groundless or
otherwise, and from and against any and all liabilities, losses,
damages, costs, charges, penalties, counsel fees, and any other expense
of any other nature, including, without limitation, settlement costs
incurred by Escrow Agent on account of any act or omission of Escrow
Agent, in respect of or with regard to this Escrow Agreement, except
insofar as such liabilities arise by reason of Escrow Agent's gross
negligence or willful misconduct.
9. LICENSE GRANT FOR USE OF SOURCE CODE; CONFIDENTIALITY
9.1 If, and only if, the Source Code is released to Reseller pursuant to
Section 4 ("Release of Deposit") hereof, Enlighten hereby grants
Reseller and its Personnel (as defined in the Agreement) the right to
use such Deposit solely for the purpose of making and distributing error
corrections, modifications, bug-fixes, and enhancements to the Software,
and performing maintenance and providing support to the Software, for
end user customers of Products (as defined in the Agreement) which
include Software. Reseller agrees that Enlighten shall own any such
error corrections, modifications, bug-fixes, and enhancements to the
Software created by Reseller in accordance with this Section 9.1, and
Reseller hereby does and will assign all right, title and interest in
such error corrections, modifications, bug-fixes, and enhancements to
the Software to Enlighten. Reseller further agrees to provide Enlighten
with a copy of each such error correction, modification, bug-fix, and
enhancement to the Software in source code form within sixty (60) days
of making such error correction, modification, bug-fix, or enhancement
to the Software available to an end user customer.
9.2 Reseller acknowledges and agrees that, in the event that Reseller
obtains the Source Code pursuant to the terms hereof, such Source Code
will be deemed "Confidential Information" under the terms of
Confidential Disclosure Agreement # __________dated ________ and
Supplement # ____________ dated ________ thereto (collectively, the
"CDA"), provided that, with respect to the Source Code, Reseller's
obligation of confidentiality will extend for a period of five (5) years
from the date Reseller obtains the Source Code.
9.3 The rights and obligations of this Section 9 ("License Grant for Use of
Source Code; confidentiality") shall survive any termination or
expiration of this Escrow Agreement.
10. RECORDS
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Escrow Agent agrees to keep complete written records of the activities
undertaken and materials prepared and delivered to Escrow Agent pursuant
to this Escrow Agreement. Enlighten and Reseller shall be entitled at
reasonable times during normal business hours and upon reasonable notice
to Escrow Agent during the term of this Escrow Agreement to inspect the
records of Escrow Agent with respect to the Source Code. Enlighten shall
be entitled upon reasonable notice to Escrow Agent and during normal
business hours to inspect the facilities of Escrow Agent with respect to
the physical status and condition of the Deposit.
11. TERMINATION
11.1 This Escrow Agreement shall terminate two (2) years after termination of
the Agreement. Upon such termination, except for termination as a result
of rejection of the Agreement in a bankruptcy case of Enlighten, Escrow
Agent shall return the Deposit to Enlighten after the payment of all
costs, fees and expenses due Escrow Agent.
11.2 Reseller and Enlighten may terminate this Escrow Agreement by mutual
written agreement, upon sixty (60) days written notice to Escrow Agent.
11.3 Escrow Agent reserves the right to resign as Escrow Agent upon sixty
(60) days prior written notice to Enlighten and Reseller. Upon
resignation, Escrow Agent shall return the Deposit to Enlighten only
after having received payment of its fees and costs pursuant to Section
13 ("Fees") of this Escrow Agreement.
11.4 In the event that the sixty (60) day notice period in Section 11.3
elapses without Escrow Agent having received payment from either
Enlighten or Reseller of the remaining fees due, Escrow Agent shall then
have the option, without further notice to either party, to terminate
the Escrow Agreement and to destroy the Deposit. If Escrow Agent
receives payment of the remaining fees due, the party paying the Escrow
Agent may arrange for a commercially recognized escrow agent to serve as
a successor Escrow Agent for the remainder of the term of this
Agreement, such escrow agent to agree in a signed writing to be bound by
the terms and conditions of this Agreement.
12. GOOD FAITH RELIANCE
Escrow Agent may rely and act upon any instruction, instrument, or
signature believed in good faith to be genuine, and may assume that any
person purporting to give any writing, notice, respect, advice, or
instruction in connection with or relating to this Escrow Agreement has
been duly authorized to do so.
13. FEES
13.1 In consideration of performing its functions as Escrow Agent, Escrow
Agent shall be compensated by Supplier as set forth in Exhibit H-1 ("Fee
Schedule"). The fees set forth in Exhibit H-1 ("Fee Schedule") will be
billed annually by Escrow Agent to Supplier. Reseller and Supplier will
equally share responsibility for and payment of any incremental expenses
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which may arise pursuant to the terms and conditions of this Escrow
Agreement.
13.2 The fees set forth in Exhibit H-1 ("Fee Schedule") are for Escrow
Agent's ordinary services as Escrow Agent. In the event Escrow Agent is
required to perform any additional or extraordinary services as a result
of being Escrow Agent, including intervention in any litigation or
proceeding, Escrow Agent shall receive reasonable compensation for such
services and be reimbursed for such costs incurred, including reasonable
attorneys' fees.
13.3 Escrow Agent shall be entitled to receive payment of all costs, fees and
expenses due it, prior to release of the Deposit.
14. ENTIRE AGREEMENT
This Escrow Agreement, including the Exhibits hereto, constitutes the
entire agreement among the parties regarding the subject matter hereof,
and shall supersede all previous and contemporaneous communications,
representations, understandings and agreement, either oral or written
between the parties. This Escrow Agreement is intended to be and shall
be treated as an agreement separate and distinct from the Agreement, the
parties acknowledging that Reseller has no substantial performance
obligation hereunder to Enlighten.
15. NOTICE
All notices required or permitted by this Escrow Agreement shall be
sufficiently served by mailing the same by certified or registered mail,
return receipt requested, to the parties at their respective addresses,
as follows:
(a) Escrow Agent:
Data Securities International, Inc.
ATTN: Contract Administration
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) Intel Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Counsel
(c) Enlighten Software Solutions, Inc.:
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ph. (▇▇▇) ▇▇▇-▇▇▇▇
Fx. (▇▇▇) ▇▇▇-▇▇▇▇
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16. COUNTERPARTS
This Escrow Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, and all of which taken together
shall constitute one and the same instrument.
17. GOVERNING LAW
This Escrow Agreement shall be governed by and construed according to
the laws of the State of California, without regard to conflicts of laws
principles.
18. SEVERABILITY
In the event any of the provisions of this Escrow Agreement shall be
held by a court of competent jurisdiction to be contrary to any state or
federal law, the remaining provisions of this Escrow Agreement will
remain in full force and effect.
19. HEADINGS
The section headings in this Escrow Agreement do not form a part of it,
but are for convenience only and shall not limit or affect the meaning
of the provisions.
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IN WITNESS WHEREOF, the parties have executed this Escrow Agreement on the date
last signed below.
for Enlighten Software Solutions, Inc.:
By:
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Chief Executive Officer, Enlighten Software
--------------------------------------------
Date: / / 1999
--------------------------------------------
for:
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Date: / / 1999
---------------------------------------------
for Escrow Agent:
Data Securities, Inc.
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Date: / / 1999
---------------------------------------------
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