Exhibit 10.47
INTEL AND NCD CONFIDENTIAL
DEVELOPMENT AND LICENSE AGREEMENT
AGREEMENT #: 0398LAD001
EFFECTIVE DATE: March 6, 1998
Parties:
INTEL CORPORATION (AND ALL WORLD WIDE INTEL DIVISIONS AND MAJORITY-OWNED
SUBSIDIARIES, HEREINAFTER "INTEL")
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▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
NETWORK COMPUTING DEVICES, INC. (HEREINAFTER "NCD")
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▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
This Development and License Agreement ("Agreement") sets forth the terms
under which NCD agrees to develop and deliver the Design in accordance with
the provisions contained in the following Exhibits which are included in and
made a part of this Agreement:
- EXHIBIT A - General Terms and Conditions;
- EXHIBIT B - Licenses, Royalties and Termination
- EXHIBIT C - Intel Lean Client Specification;
- EXHIBIT D - Statement of Work;
- EXHIBIT E - Intel Technical Information;
- EXHIBIT F - Maintenance and Support Provisions
- EXHIBIT G - NCD Technical Information
INTEL CORPORATION NETWORK COMPUTING DEVICES, INC.
/s/ ▇▇▇ ▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Signature Signature
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Printed Name Printed Name
GM President & CEO
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Title Title
March 6, 1998 March 6, 1998
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Date Date
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EXHIBIT A
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
1.1 GENERAL DEFINITIONS
(a) "Contributed Software" means software specifically labeled as
Contributed Software as delivered or as updated or modified by
either party in accordance with the terms of this Agreement, and
that NCD or Intel owns or has the right to license under the terms
of this Agreement and has been contributed to the other party in
source or binary format for the purposes of promoting standards in
the industry.
(b) "Design" means the Lean Client hardware design using Intel
microprocessor(s) and Intel core logic chipset(s) or items to be
developed by NCD through the Project under a Statement of Work as
specifically described in EXHIBIT D, including any prototype,
revision, upgrade or new version of the Design or a new Design
developed for Intel by NCD under an agreed to Statement of Work.
The definition of "Design" specifically pertains to the
development by NCD of an Intel Lean Client hardware design through
NCD's creation or production of drawings, routings, bills of
material, schematics, product specification, engineering design
specification, evaluation and certification reports, and circuit
diagrams under applicable Statements of Work. The "Design" does
not include any NCD Software except as specifically agreed
otherwise.
(c) "Effective Date" means the date of commencement of this Agreement
as shown on the cover page to which this exhibit is attached.
(d) "Intel Architecture" or "IA" refers to combination 16-32 bit and
32 bit or greater X86 microprocessors (including the X86
microprocessors) made or sold by Intel now or in the future, such
as but not limited to the i386-TM-, 486-TM-, Pentium-Registered
Trademark-, Pentium processor with MMX-TM- technology, Pentium
Pro, and Pentium II processors, and the instruction sets
compatible with them.
(e) "Intel Architecture product" means a which is based on or
compatible with Intel Architecture as defined herein.
(f) "Intel Intellectual Property" means Intel's patents, copyrights
and trade secrets represented or disclosed in the Intel Technical
Information, and necessary for the manufacture, distribution and
use of Product.
(g) "Intel Software" means computer programming code in object code and
source code formats provided to NCD, including improvements to
device drivers or firmware made generally available by Intel or at
Intel's sole discretion and other elements or code as delivered to
NCD or as updated by Intel or as modified by NCD in accordance
with the terms of this Agreement, and includes
1. "IALC-only Software" means software provided by Intel to NCD
that may be incorporated, and only incorporated, into
software that is run on Intel Architecture products. Intel
Software will be assumed to be IALC-only Software unless
otherwise designated by Intel.
2. "General LC Software" means software provided by Intel to
NCD that may be incorporated into software that is run on
any NCD product.
CERTAIN INFORMATION IN THIS EXHIBIT 10.47 HAS BEEN OMITTED AND FILED
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(h) "Intel Technical Information" means the technical information and
associated documentation specified by Intel in EXHIBIT E or in
conjunction with a particular Statement of Work, as delivered or
as updated by Intel or as modified by NCD in accordance with the
terms of this Agreement.
(i) "Joint Work" means technology, software and/or those products
which Intel and NCD specified in writing shall be owned jointly by
them.
(j) "Milestones" means the requirements for the completion of each
Phase, as specified in EXHIBIT D.
(k) "NCD Intellectual Property" means NCD's patents, copyrights and
trade secrets represented or disclosed in the Design and necessary
for the manufacture, distribution and use of Product.
(l) "NCD product" means a product sold or otherwise distributed by NCD
which is not based on or compatible with Intel Architecture.
(m) "NCD Software" means computer programming code in object code and
source code formats as specifically designated in this Agreement
and owned by NCD or which NCD has the right to license under the
terms of this Agreement, as delivered or as updated by NCD or as
modified by Intel in accordance with the terms of this Agreement
and includes:
1. "Level 1 Software" means the software required to minimally
boot an operating system image, including but not limited to
Windows* CE, that has been stored in the flash memory of the
Product.
2. "Level 2 Software" means all software for the Product not
encompassed by ▇▇▇▇▇ ▇ Software above and below the
operating system or firmware level as appropriate, including
but not limited to application software and BIOS.
3. "Level 3 Software" means the version of Windows* CE
customized for the Product and licensed to NCD or other
third party software.
(n) "NCD Technical Information" means the technical information and
associated documentation specified by NCD in EXHIBIT G or in
conjunction with a particular Statement of Work, as delivered or
as updated by NCD or as modified by Intel in accordance with the
terms of this Agreement.
(o) "Phase" means any of the various segments or portions into which
the Project is divided, as described in EXHIBIT D.
(p) "Product" means products based on a Design(s) and manufactured for
internal use and for sale to customers.
(q) "Project" means the development effort described in a Statement of
Work, EXHIBIT D, through and including acceptance by Intel but
excluding any subsequent obligations.
(r) "Statement of Work" means the Project phases, milestones,
management and acceptance of a Design(s) specified in EXHIBIT D.
(s) "Tier 1 Pricing" means pricing consistent with market maker or
market leader pricing available from Intel for the particular
chipset and CPU products to be provided by Intel to NCD under this
Agreement and specifically set forth in the Statement of Work and
other additional Statements of Work. Such Tier 1 Pricing will be
consistent with pricing offered to other market makers or market
leaders shipping the largest volume of units in a given market
segment.
CERTAIN INFORMATION IN THIS EXHIBIT 10.47 HAS BEEN OMITTED AND FILED
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1.2 USE OF PRONOUNS. First person plural pronouns (such as "we", "us" or
"our") refer to both NCD and Intel.
2. OWNERSHIP
2.1 (a) OWNERSHIP OF THE DESIGN. NCD will own the Design developed by NCD
under this Agreement (including any work in process prior to
Intel's acceptance), subject to Intel's ownership rights in any
Intel Intellectual Property, Intel Software and Intel Technical
Information represented or used in the Design.
(b) OWNERSHIP OF JOINT WORK: NCD and Intel will identify and specify
in writing and in advance of any development effort any
technology, software or other products which will be jointly owned
by NCD and Intel pursuant to this Agreement. Only that technology,
software and/or those products which are so specified in writing
shall be jointly owned, and such joint ownership shall be without
rights or obligations of accounting. If the parties do not specify
that a particular item of technology, software or a particular
product that is jointly developed by NCD and Intel is to be
jointly owned, then the parties intend that such technology,
software and/or product will not be a joint work, and each party
will have separate ownership of those portion of such technology,
software and/or products that it created or developed. With
respect to technology, software and/or products that are jointly
owned, either party may seek patent protection or trademark and
copyright registrations, with respect to such jointly owned
technology, software and/or products in the names of the parties
as joint owners, and the parties shall share equally in the cost
of doing so. In the event that one party elects not to share in
the cost of seeking patent protection or trademark or copyright
registrations, with respect to a particular item of such
technology, software and/or products, (i) the other party may do
so in its own name only and at its sole expense, (ii) the party
electing not to share in such expenses will execute any documents
and take any action reasonably requested to allow the other party
to seek such protection and registrations in its name only, (iii)
the party electing not to share expenses will execute documents
transferring its ownership interest in the particular item of
technology, software or a particular product to the other party,
and (iv) the party in whose name such patent or trademark or
copyright registration issues shall grant, and does hereby grant
to the other party, a non-exclusive, worldwide, perpetual,
irrevocable, unrestricted, royalty free license, with full right
to sublicense, under the same.
(c) OWNERSHIP OF DERIVATIVES. Derivatives of technology or software
created by either party shall be owned by the party who owns the
underlying original work.
(d) OWNERSHIP OF INTEL TECHNICAL INFORMATION AND INTEL SOFTWARE.
Shall be owned by Intel.
(e) OWNERSHIP OF NCD TECHNICAL INFORMATION AND NCD SOFTWARE. Shall be
owned by NCD.
2.2 USE OF INTEL TECHNICAL INFORMATION.
(a) NCD will use any Intel Technical Information provided by Intel
only as necessary for NCD's work on the Project.
(b) NCD may not sublicense others to use the Intel Technical
Information or Intel Intellectual Property for any purpose without
Intel's prior written consent.
2.3 USE OF NCD TECHNICAL INFORMATION.
(a) Intel will use any NCD Technical Information provided by NCD only
as necessary for Intel's work on the Project.
(b) Intel may not sublicense others to use the NCD Technical
Information or NCD Intellectual Property for any purpose without
NCD's prior written consent.
CERTAIN INFORMATION IN THIS EXHIBIT 10.47 HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
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3. LICENSES
3.1 Licenses are set forth in EXHIBIT B.
4. PRODUCT MARKING AND USE OF INTEL NAME AND TRADEMARKS
4.1 NCD will place on the Product and in any related literature a
conspicuous notice of all Intel copyrights covering the Intel Technical
Information, or any portion of the Intel Intellectual Property. NCD will
give this notice in accordance with any reasonable requirements Intel
may from time to time request in writing. Except for this required
notice of any Intel copyrights, NCD will not use Intel's name or any
Intel trademark or service ▇▇▇▇ in connection with the Product or to
market the Product. In the event that Intel creates brand for this
market segment, NCD will have the right to use said brand so long as NCD
agrees to comply with the terms and conditions of the branding program.
In the event Intel does not create a brand for the lean client segment,
NCD with Intel's concurrence, will have the right to use the
Pentium-Registered Trademark- brand on Product. NCD will also have the
right to identify itself in public as a designer and supplier of Intel
Architecture Lean Clients for OEMs and end users.
5. CONSIDERATION
5.1 NCD DELIVERABLES
(a) DEVELOPMENT OF PRODUCT. NCD agrees to develop the Product based
upon one or more Intel Architecture based lean client designs
jointly approved by NCD and Intel not later than the date
specified in the Statement of Work. The Product will include
features and functionality described in said Statement of Work.
NCD agrees that the product will be manufactured in volume by it
or by its subcontractors and will be made available at a
competitive price to PC OEMs or other marketers or distributors of
enterprise computing solutions.
(b) NEW PRODUCTS, FEATURES AND DEVELOPMENTS.
(i) NCD will introduce new products and features, including all
NCD lean client software products, for Intel Architecture
platforms / Intel silicon (including but not limited to
microprocessors, core logic chipsets, networking, graphics,
video or security silicon) no later than said products and
features are made available by NCD for a non Intel
Architecture platform / non-Intel silicon.
(ii) Where Intel provides NCD with details of its developments
including lean client product roadmaps, for the purpose of
enhancing NCD's Intel Architecture based technologies and
products, NCD will use all reasonable commercial efforts to
put into production and support such developments provided
(a) the parties jointly agree to productize such
developments, and (b) NCD receives development details and
product roadmaps in a timely manner. Such developments may
include, but will not be limited to, client management,
power management, and security technologies. Intel will have
no obligation to provide NCD with details of any Intel
developments.
(iii) If NCD determines from a review of the products, features or
developments referred to in subsections (i) and (ii) above
("Intel features"), that it cannot introduce, put into
production or support Intel features because such features
are not competitive (in terms of price, performance, power
dissipation, and integration) with products, features or
developments of other leading semiconductor manufacturers,
and the project teams of both parties cannot come to a
resolution with regard to NCD's use of Intel features, the
parties may enter into Dispute Resolution under SECTION 11.6.
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(iv) The obligations in subsections (i) and (ii) will not include
any version of the following products currently under
development by or being shipped by NCD: the HMX family of X
terminals and the NCD Explora family of thin client devices
as well as the NCDware software that runs upon them, the NCD
ThinSTAR models of Windows-based Terminals that use the NEC
VR4300 family of microprocessors or the NCD ThinSTAR
connectivity suite terminal emulation packages that run on
them, the IBM Network Station family of network computers
and thin client devices as well as the software codenamed
"ACTware" that runs on them, the NCD WinCenter family of
multi-user Windows NT software, or the NCD PC-Xware
connectivity software.
(c) NCD PRODUCT PLANS / ROADMAPS. NCD will, on a quarterly basis
unless otherwise agreed, regularly disclose relevant plans /
roadmaps to Intel, subject to SECTION 9.1.
(d) ACCESS AND PERSONNEL. Upon reasonable notice, NCD agrees, subject
to SECTION 9.1, to allow Intel personnel access to NCD's premises
and to NCD personnel for the purpose of facilitating Intel's
objective of better understanding the lean client segment, in
addition to design and manufacturing issues related to lean
clients. To coordinate each meeting, both NCD and Intel will
interface with their project management counterparts to establish
an agenda for, the frequency of and the objective of such
meeting(s).
(e) CONTRACT MANUFACTURERS. NCD agrees for the purposes of this
Agreement to secure adequate manufacturing capacity for the
Product no later than January 1, 1999, in order to support at
least three OEM customers with annual volumes in excess of 1M lean
client units per OEM manufacturer.
(f) REASONABLE EFFORTS TO SUPPORT THE PRODUCT. NCD will make all
reasonable efforts to maintain and support the Product.
Maintenance and support obligations are set out in EXHIBIT F.
(g) JOINT MARKETING. NCD will work with Intel to actively recruit
OEMs for the Product. Within thirty (30) days from the Effective
Date of this Agreement, NCD will provide Intel with a written plan
specifying OEMs to be approached, the order in which said OEMs
will be approached, the value proposition to be presented, and
recommendations for ways in which Intel might reasonably help with
the recruiting including, but not limited to, press releases,
collateral, web site references, customer visits, trade shows, and
seminars. NCD will, on a quarterly basis unless otherwise mutually
agreed, meet with the appropriate personnel from Intel to discuss
joint marketing efforts. NCD senior managers will invite Intel
senior managers or make best commercial efforts to accept
invitations by senior Intel managers to meet with potential major
OEM customers.
(h) MIGRATION OF NCD PRODUCTS. NCD will investigate what will be
required to port its existing NCDware or ACTware software to an
Intel Architecture platform. Within thirty (30) days of the
Effective Date of this Agreement, NCD will present Intel with a
proposal that will specify the work that would be required, the
schedules by which it would be done, and the fees that would be
required. In addition, within that same period, senior managers
from both NCD and Intel will jointly meet with IBM to discuss
migrating their NCD-supplied products to an Intel Architecture
platform.
(i) ROYALTY PAYMENTS. NCD will pay to Intel royalties in such amount,
if any, as are specified in EXHIBIT B. If EXHIBIT B does not
specify royalties, the license set forth in EXHIBIT B will be a
royalty free license.
5.2 INTEL DELIVERABLES
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(a) CHIPSET AND CPU PRICING. Intel will, for the term of this
Agreement except for Intel's specific termination rights under
SECTION 2.2 of EXHIBIT B or as set forth below in following
paragraph, provide Tier 1 chipset and CPU pricing to NCD.
Unless otherwise mutually agreed, the Tier 1 price will be
reviewed quarterly beginning twelve (12) months from the start of
production volumes manufactured by NCD. If at least fifty (50)
percent of NCD's total volume of Intel Architecture products
produced over the preceding three (3) months are not being sold
through OEMs, Intel will have the right, after giving notice to
NCD in writing, to renegotiate these prices. If after ninety (90)
days from receiving notice from Intel, NCD has neither achieved a
fifty percent (50%) sales rate through OEMs nor reached a new
pricing agreement with Intel, Intel will have the right to suspend
its pricing guarantees on new Products shipped under the NCD brand
direct to end customers or through NCD resellers. However, NCD
will continue to receive and retain the Tier 1 pricing for
Products that are already shipping.
(b) COMPONENT PRICING. Intel will, where it deems it to be possible,
make representations to its suppliers on behalf of NCD with the
objective of having its suppliers extend pricing to NCD similar or
close to what is offered to Intel in the course of its business.
Intel, however, makes no representation or warranty whatsoever in
relation to such efforts or the results arising therefrom.
(c) LEAN CLIENT INITIATIVES. Intel will, on a quarterly basis unless
otherwise agreed and if deemed relevant by Intel for the purposes
of this Agreement, disclose its initiatives in the lean client
segment to NCD. Any input received from NCD on such disclosure may
be incorporated by Intel into its plans or roadmaps for the
segment should Intel so elect. In addition, where Intel sells or
offers to sell or licenses Intel developments to any third party
in the lean client segment Intel will offer such developments to
NCD under terms and at reasonable prices consistent with NCD's
market maker status and no later than what is offered to any third
party in the lean client segment.
(d) JOINT MARKETING. Intel will work with NCD to actively recruit
OEMs for the Product. Within thirty (30) days from the Effective
Date of this Agreement, Intel will appoint an OEM marketing
representative who will work with NCD to coordinate joint
marketing and selling activities. Intel will review and provide
feedback on the marketing plan delivered by NCD in SECTION 5.1(h).
Intel will, on a quarterly basis unless otherwise mutually agreed,
meet with the appropriate personnel from NCD to discuss joint
marketing efforts. Intel will use reasonable commercial efforts to
provide NCD with introductions to OEMs, marketers, and resellers
in the lean client segment. Intel senior managers will invite NCD
senior managers or make best commercial efforts to accept
invitations by senior NCD managers to meet with potential major
OEM customers. Intel, however, makes no representation or warranty
whatsoever in relation to such efforts on their part or the
results arising therefrom.
(e) INTEL AND THIRD PARTY DESIGNS. For any applicable Design as
represented in a particular Statement of Work, and provided NCD is
meeting the material milestones as described in the Statement of
Work, Intel will until the sooner of [*] from the Effective Date
stated in the applicable Statement of Work or [*] from NCD's volume
production of the applicable Design, refrain either by itself or
in collaboration with any other third party, from developing,
making, have made, selling or offering to sell a board level
product based on an Intel design or a third party design and which
is substantially equivalent to the Design in terms of form, fit
and function, or is a derivative of the Design.
(f) NCD's DESIGN. For any applicable Design as represented in a
particular Statement of Work, provided NCD is meeting the material
milestones as described in the Statement of Work, Intel will until
the sooner of [*] from the Effective Date stated in the applicable
Statement of Work or [*] from NCD's volume production of the
applicable Design, reference
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NCD's design as the preferred design for the Lean Client
marketplace. Intel will, however, be free to publicly display and
demonstrate lean client segment products from any other third
party supplier and will be free to work with or investigate third
party designs.
(g) RIGHT OF FIRST REFUSAL. Intel and NCD agree to meet on a regular
basis, and at least once a quarter, to discuss future directions,
marketing trends, product design and software requirements. Intel
will, for the duration of this Agreement and provided NCD is
meeting the material milestones as described in the Statement of
Work, offer NCD a right of first refusal to develop a subsequent
Design on which future Product could be based. If NCD's proposals
for such subsequent Design are not satisfactory to Intel, Intel
will be free to place the development of such design with any
third party on terms no more favorable to such third party than
those proposed by NCD.
(h) ROYALTY PAYMENTS. Intel will pay to NCD royalties in such amount,
if any, as are specified in EXHIBIT B. If EXHIBIT B does not
specify royalties, the license set forth in EXHIBIT B will be a
royalty free license.
6. BUYOUT
6.1 BUYOUT. Intel shall have the right to buy out a particular Design
specified by an associated Statement of Work. To exercise this right,
Intel would give NCD thirty (30) days notice (the buyout becomes
effective after the expiration of the 30-day period) and pay NCD the
lump sum of (i) [*] times the budgeted development costs agreed to in the
Statement of Work (not including any in-kind resources provided by
Intel) if the Buyout is effective no later than nine months after the
Effective Date of the associated Statement of Work; (ii) [*] times the
budgeted development costs agreed to in the Statement of Work (not
including any in-kind resources provided by Intel) if the Buyout is
effective after nine months from the Effective Date of the associated
Statement of Work but sooner than eighteen months after the Effective
Date of associated Statement of Work; or (iii) [*] times the budgeted
development costs agreed to in the Statement of Work (not including any
in-kind resources provided by Intel) if the Buyout is effective any time
later than eighteen months after the Effective Date of the associated
Statement of Work.
In consideration for and subject to the payments described above, NCD
hereby grants to Intel the following licenses:
(a) Intel is licensed to use the specified Design pursuant to the
license set forth in EXHIBIT B, SECTION 1.4(a).
(b) Intel is licensed to sublicense the Level 1 Software pursuant to
the license set forth in EXHIBIT B, SECTION 1.4(b).
(c) Intel is licensed to sublicense the Level 2 Software pursuant to
the license set forth in EXHIBIT B, SECTION 1.4(c); and
(d) NCD shall assist Intel in obtaining a license to Level 3
Software as set forth in EXHIBIT B, SECTION 1.6.
6.2 RIGHT TO SUBLICENSE. Notwithstanding the above, Intel may contact NCD
regarding licensing the Design without exercising Intel's buyout right.
In this event, Intel and NCD agree to negotiate in good faith, on a
case-by-case basis, to grant Intel the right to sublicense the Design to
another third party (under non-disclosure terms with, and if requested
by, such third party) subject to NCD and Intel reaching a mutual
agreement on terms which shall include but are not limited to royalties
associated with the Design and NCD Software.
Even though this provision is entitled "buyout" and utilizes the phrase
"buyout option" throughout, in all cases NCD retains its ownership
rights to the Design and all NCD Software.
7. MAINTENANCE
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7.1 NCD will provide Intel with maintenance and support for the Design for
the period specified and as provided in EXHIBIT F.
8. WARRANTIES, REPRESENTATIONS AND DISCLAIMERS
8.1 NCD MAKES THE FOLLOWING WARRANTIES AND REPRESENTATIONS TO INTEL:
(a) The Design as delivered to Intel will be free from all known
defects and errors and will meet the specifications to be agreed
to by the parties and contained in EXHIBIT C or similar document
for each Statement of Work. For a period of ninety (90) days after
Intel's acceptance of a Design(s), NCD will correct all known
defects and errors which are identified by Intel.
(b) NCD has the right to grant the licenses set forth in EXHIBIT B to
Intel, and NCD's ownership of the Design will be free of any
claims, liens or conflicting rights in favor of any third party
(other than Intel's rights in Intel Intellectual Property and
intellectual property of third parties which Intel is authorized
to use as provided in EXHIBIT B).
(c) NCD has no reason to believe that the Design violates any
intellectual property right of any third party.
(d) All information contained in any certificate or written statement
which NCD has or may give to Intel in connection with the Project
or the Design, will be true and complete in all material respects.
(e) WITH REGARD TO THE DESIGN, ANY AND ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY
EXCLUDED.
8.2 INTEL MAKES THE FOLLOWING DISCLAIMERS TO NCD:
THE INTEL DELIVERABLES AND INTEL TECHNICAL INFORMATION ARE PROVIDED "AS
IS" WITHOUT WARRANTY OF ANY KIND. INTEL SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE AND ANY WARRANTY AGAINST INFRINGEMENT OF ANY INTELLECTUAL
PROPERTY RIGHT OF ANY THIRD PARTY. INTEL MAKES NO REPRESENTATION OR
WARRANTY THAT THE INTEL DELIVERABLES AND INTEL TECHNICAL INFORMATION
WILL BE ADEQUATE TO DEVELOP PRODUCT.
9. CONFIDENTIALITY; NON-DISCLOSURE
9.1 It may become necessary during the course of this Agreement for one
party to disclose to the other information which the disclosing party
considers confidential ("Confidential Information"). Disclosure of such
Confidential Information shall be governed by the terms of the Corporate
Non-disclosure Agreement or Restricted Use Non-disclosure Agreement(s)
to be executed separately by the parties.
9.2 NCD or its subcontractor agrees not to reverse engineer any Intel
Confidential Information or products and will not decompile or disassemble
any Intel software which is furnished to NCD by Intel under this
Agreement. Intel or its subcontractor agrees not to reverse engineer any
NCD Confidential Information or products and will not decompile or
disassemble any NCD Software, which is furnished to Intel by NCD under
this Agreement.
9.3 Except as required by law, neither party may disclose the content of
this Agreement or the preceding discussions without the prior written
consent of the other party. Any public announcement relating to this
CERTAIN INFORMATION IN THIS EXHIBIT 10.47 HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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Agreement or the business relationship between the two parties shall not
be made without the prior written consent of the other party.
9.4 Notwithstanding the foregoing or anything else contained in this
Agreement, either party may use Residuals (as defined below) for any
purpose including without limitation, for the development, manufacture,
promotion, sale or maintenance of its products and services; provided
however, that the right to use Residuals does not represent a license
under any patent or copyright.
"Residuals" means any information that is retained in the unaided
memories of a party's employees who have had access to the Confidential
Information pursuant to the terms of this Agreement. An employee's
memory is unaided if the employee has not intentionally memorized
Confidential Information for the purpose of retaining and subsequently
using or disclosing it.
10. LIMITATION OF LIABILITY
10.1 LIABILITY ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT,
OBJECTIVELY MEASURABLE DAMAGES AND NEITHER PARTY SHALL HAVE ANY
LIABILITY FOR ANY INDIRECT OR SPECULATIVE DAMAGES (INCLUDING, WITHOUT
LIMITING THE FOREGOING, CONSEQUENTIAL, INCIDENTAL AND SPECIAL DAMAGES),
INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, BUSINESS INTERRUPTIONS, AND
LOSS OF PROFITS, IRRESPECTIVE OF WHETHER THE PARTY HAS ADVANCE NOTICE OF
THE POSSIBILITY OF ANY SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTIES'
TOTAL LIABILITY TO THE OTHER UNDER THIS AGREEMENT EXCEED FIVE MILLION
DOLLARS ($5,000,000). THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS ON
POTENTIAL LIABILITIES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION
UNDER THIS AGREEMENT. THE ABOVE LIMITATION OF LIABILITY WILL NOT APPLY
TO BREACHES OF CONFIDENTIALITY UNDER SECTION 9 OR ANY CLAIMS FOR MONEYS
DUE UNDER THIS AGREEMENT.
11. GENERAL PROVISIONS
11.1 CHANGE PROCEDURES: OTHER AMENDMENTS.
(a) The Specifications, Statement of Work, Milestones or acceptance
criteria in EXHIBIT D may be changed or waived by the agreement of
the project managers listed in EXHIBIT D. Any such changes shall
be in writing, and signed by both project managers. Unless
otherwise agreed in writing NCD is responsible for any cost
increase resulting from any such change, and NCD will benefit from
any cost savings which result from any change.
(b) Any change, modification or waiver to this Agreement must be in
writing and signed by an authorized representative of each party.
Such changes, modifications or waivers cannot be approved by the
project manager.
11.2 ASSIGNMENT. Intel may assign its rights or delegate its obligations or
any part thereof under this Agreement without prior consent from NCD.
NCD may not assign, whether in conjunction with a change of ownership,
merger, acquisition, sale or transfer of all, substantially all or any
part of NCD's business or assets or otherwise, either voluntarily, by
operation of law or otherwise, any portion of this Agreement, without
Intel's prior written consent, which may be arbitrarily withheld. Except
as provided above, the terms and conditions of this Agreement shall bind
and enure to each party's successors and assigns.
11.3 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
Licensee and Intel.
CERTAIN INFORMATION IN THIS EXHIBIT 10.47 HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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11.4 WAIVER OF PERFORMANCE. 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.
11.5 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 NCD:
Intel Corporation Network Computing Devices, Inc.
Attn: General Counsel Attn: General Counsel
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
With copy to: With copy to:
Intel Corporation Network Computing Devices, Inc.
Attn: Post Contract Management, Attn: President
MS JF3-149 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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.
11.6 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 disputes cannot be resolved by the senior
management, 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 days after the one day
mediation, either party may begin litigation proceedings. The parties
will not be required to follow the dispute resolution alternatives in
the event of a breach arising under SECTION 9.
11.7 GOVERNING LAW. Any claim arising under or relating to this Agreement
shall be governed by the internal substantive laws of the State of
Delaware, without regard to principles of conflict of laws. The parties
agree that the venue of any legal action will be the Superior Court of
Santa ▇▇▇▇▇ County situated in San Jose, California.
11.8 EXPORT CONTROL. Neither party shall export, either directly or
indirectly, the Design or any Product or system incorporating such
Design or Product without first obtaining any required license or other
approval from the U.S. Department of Commerce or any other agency or
department of the United States Government. In the event the Design or
any Product is exported from the United states or re-exported from a
foreign destination by either Party, that Party shall ensure that the
distribution and export/re-export of the Design or Product is in
compliance with all laws, regulations, orders, or other restrictions of
the U.S. Export Administration Regulations. Both parties agree that
neither it nor any of its subsidiaries will export/re-export any
technical data, process, Design, Product, or service, directly or
indirectly, to any country for which the United States government or any
agency thereof requires an export license, other governmental approval,
or letter of assurance, without first obtaining such license, approval or
letter.
CERTAIN INFORMATION IN THIS EXHIBIT 10.47 HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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11.9 REMEDIES. The remedies set forth in this Agreement are in addition to
those available to either party at law or in equity. 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.
11.10 SEVERABILITY. The terms and conditions stated herein are declared to
be severable. If any section, 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.
11.11 NO RULE OF STRICT CONSTRUCTION. Regardless of which of us may have
drafted this Agreement, no rule of strict construction shall be applied
against either of us. If any provision of this Agreement is determined
by a court to be unenforceable, we will deem the provision to be
modified to the extent necessary to allow it to be enforced to the
extent permitted by law, or if it cannot be modified, the provision
will be severed and deleted from this Agreement, and the remainder of
the Agreement will continue in effect.
11.12 FORCE MAJEURE. Neither party will be liable for any failure to perform
due to unforeseen circumstances or causes beyond the party's reasonable
control, including, but not limited to, acts of God, war, riot,
embargoes, acts of civil or military authorities, delay in delivery by
vendors, fire, flood, earthquake, accident, strikes, inability to
secure transportation, facilities, fuel, energy, labor or materials. In
the event of force majeure, the delayed party's time for delivery or
other performance will be extended for a period equal to the duration
of the delay caused thereby.
11.13 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. 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.
EXHIBIT B
LICENSES, ROYALTIES AND TERMINATION
1. LICENSE GRANTS
1.1 LICENSE TO NCD FOR INTEL SOFTWARE. Subject to the terms and conditions
of this Agreement, Intel grants NCD a non-exclusive, nontransferable,
worldwide, royalty-free license, with the right of sublicense, under
Intel copyrights, and to the minimum extent necessary to exercise the
license granted in this SECTION 1.1, under (a) claims of Intel patents
and patent applications that read on inventions incorporated in Intel
Software, and under (b) trade secrets in the Intel software to copy,
have copied, create derivatives of, modify, translate, display, perform
and distribute Intel Software for the purposes of developing,
supporting and maintaining Intel Software for use with Products, Intel
Architecture products and NCD products (except as noted in (c), (d) and
(e), below) manufactured by or for NCD for sale or other transfer by
NCD to its customers or resellers, subject to NCD's strict compliance
with the following exceptions and restrictions:
CERTAIN INFORMATION IN THIS EXHIBIT 10.47 HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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(a) Notwithstanding the licensed rights stated above, NCD shall use
the Intel Software source code internally only; NCD shall hold
Intel Software source code in confidence and shall exercise the
same degree of care, but no less than reasonable care, in
preventing disclosure of Intel Software source code as NCD uses
to protect its own proprietary information. At a minimum, NCD
shall limit the disclosure of source code only to NCD's
employees, consultants and contractors who have agreed to abide
by non-disclosure terms as protective as those set forth in this
Agreement and who have a need to know such information, and shall
not disclose the source code to any subsidiary, affiliate,
individual, corporation, other independent contractor, other
consultant or other entity or third party without Intel's prior
written consent; and,
(b) NCD shall retain Intel's copyright notices on each copy of the
Intel Software (both binary and source code);
(c) Unless otherwise agreed in a particular Statement of Work,
IALC-only Software (i) shall be used for and distributed by NCD
only with or for the Product and Intel Architecture products
manufactured by or for NCD for sale or other transfer by NCD to
its customers and resellers, and (ii) will not be subject to
royalties or further rights of accounting; and,
(d) Unless otherwise agreed in a particular Statement of Work, general
LC software may be used for and distributed with (i) Products,
(ii) Intel Architecture products, (iii) NCD products,
manufactured by or for NCD for sale or other transfer by NCD to
its customers and resellers, and Intel and NCD shall negotiate in
good faith for any appropriate license fees, royalties or rights
of accounting for General LC Software which shall be consistent
with Tier 1 pricing; and,
(e) NCD shall distribute Intel Software (as allowed under SECTIONS
1.1(c) and 1.1(d), above) in binary form only (i) to NCD
customers or resellers pursuant to sublicenses at least as
protective of Intel as the terms of this subsection, and (ii) to
end users pursuant to a standard end user license; and,
(f) Intel shall own all derivatives and modifications of Intel
Software created by or for NCD and such derivatives and
modifications shall be licensed to NCD under this SECTION 1.1;
and,
(g) NCD shall not distribute or sublicense Intel software as a
stand-alone product, nor permit any third party or sublicensee to
do so;
(h) Distribution to the US government or US government contractors
shall be under restricted rights and shall include a restricted
rights legend as required under FARS AND DFARS to protect Intel's
proprietary rights in the IALC-only Software; and,
1.2 LICENSE TO NCD FOR INTEL TECHNICAL INFORMATION. Subject to the terms
and conditions of this Agreement, Intel grants NCD a non-exclusive,
nontransferable, worldwide, royalty-free license, without the right of
sublicense, under Intel copyrights, and to the minimum extent necessary
to exercise the license granted in this Section 1.2, under (a) claims
of Intel patents and patent applications that read on inventions
incorporated in Intel technical Information, and under (b) trade
secrets in the Intel Technical Information, (i) to copy, have copied,
create derivatives of, modify, translate, display, and distribute Intel
Technical Information for use solely to develop a Design or Designs,
and (ii) to make, have made, use, sell, offer to sell, import, modify
and otherwise distribute Products which implement Intel Technical
Information, subject to NCD's strict compliance with and assent to the
following restrictions and disclaimers;
(a) NCD shall use Intel Technical Information internally only and
shall not disclose it to third parties (except where distribution
of it results inevitably from the distribution of the Product);
and,
(b) NCD will indemnify, defend and hold Intel harmless from all loss,
cost, liability and expense incurred by Intel and any of its
subsidiaries which arise out of a claim concerning NCD's use or
implementation of the Intel Technical Information, Design and
manufacture and disposition of
CERTAIN INFORMATION IN THIS EXHIBIT 10.47 HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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Product, including but not limited to any warranty claims
concerning the Design and Product. Intel agrees to provide NCD
with prompt notice of any such claims and shall provide NCD with
reasonable assistance (at NCD's expense) in the defense or
settlement of such claims. Intel shall grant NCD sole authority
and control of the defense or settlement of the claim. Intel shall
have no authority to settle any action on NCD's behalf, and no
costs or expenses shall be incurred for the account of NCD without
NCD's prior written consent; and,
(c) DISCLAIMER. THE INTEL TECHNICAL INFORMATION, INTEL SOFTWARE AND
ALL OTHER INFORMATION AND MATERIALS PROVIDED PURSUANT TO THIS
LICENSE ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND,
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND INTEL SPECIFICALLY
DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OR
FITNESS FOR A PARTICULAR PURPOSE. SPECIFICALLY, INTEL MAKES NO
WARRANTIES WITH REGARD TO THE SUFFICIENCY OF THE INTEL TECHNICAL
INFORMATION OR INTEL SOFTWARE OR NCD'S ABILITY TO IMPLEMENT EITHER.
(d) No rights or licenses are granted by Intel to NCD, express,
implied, by estoppel or otherwise, with respect to any patent,
copyright, trade secret, trademark, maskwork, or other
intellectual property right owned or controlled by Intel, except
as expressly provided in this EXHIBIT B. Furthermore,
notwithstanding anything in this Agreement, the license grants in
this Agreement do not include any right, license, release or
immunity, directly or indirectly, express, implied or by estoppel
under any Intel patent, copyright, trade secret, mask work or
other intellectual property right, in or to Intel component or
microprocessor including, without limitation, any Intel X86
microprocessor series, associated logic devices (including,
without limitation, chipsets), flash memory, video devices, or any
other component specified in any manufacturing package, or to any
semiconductor manufacturing technology; and,
(e) Intel shall own all derivatives and modifications of the Intel
Technical Information created by NCD and such derivatives and
modifications shall be licensed to NCD under this SECTION 1.2.
1.3 LICENSE TO INTEL FOR THE DESIGN AND LEVEL 1 SOFTWARE. Subject to the
terms and conditions of this agreement, NCD grants to Intel a
non-exclusive, non-transferable, worldwide, royalty-free license under
NCD copyrights covering the Design and Level 1 Software (and not
including ▇▇▇▇▇ ▇ and Level 3 Software), and to the minimum extent
necessary under (a) claims of NCD patents and patent applications that
read on inventions incorporated in the Design(s) and/or Level 1
Software (and not including ▇▇▇▇▇ ▇ and Level 3 Software), and under
(b) trade secrets in the Design(s) and Level 1 Software (and not
including ▇▇▇▇▇ ▇ and Level 3 Software), to copy, have copied,
create derivatives of, modify, translate, display, perform, distribute,
use, make, have made, use, import, offer to sell, sell and otherwise
distribute Products based on a Design which may include Level 1
Software, subject to the payment terms and Buyout provisions in SECTION
6 OF EXHIBIT A and the termination provisions of this EXHIBIT B.
1.4 LICENSES TO INTEL UPON BUYOUT: Upon Intel's exercise of its buyout
rights under SECTION 6 of EXHIBIT A, and subject to the terms and
conditions of this agreement, including SECTION 1.5 herein:
(a) NCD grants to Intel a non-exclusive, non-transferable, worldwide,
royalty-free (but subject to payment terms of SECTION 6 of EXHIBIT A)
licenses with right of sublicense, under NCD copyrights in the
Design(s) and Level 1 Software (and not including ▇▇▇▇▇ ▇ and Level 3
Software), and to the minimum extent necessary to exercise the
license granted in this SECTION 1.4(a) under (i) claims of NCD
patents and patent applications that read on inventions incorporated
in the Design(s) and Level 1 Software (and not including ▇▇▇▇▇ ▇ and
Level 3 Software), and under (ii) trade secrets in the Design(s)
and Level 1 Software (and not including ▇▇▇▇▇ ▇ and Level 3
Software) to copy, have copied, create derivatives of,
translate, display, distribute, perform, make, have made, use,
sell, offer to sell, import, modify and otherwise distribute
Products manufactured
CERTAIN INFORMATION IN THIS EXHIBIT 10.47 HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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by or for Intel based on a Design or Designs which may include
Level 1 Software and which are the subject of the buyout.
(b) NCD grants to Intel a non-exclusive, non-transferable, worldwide,
royalty free license, with right to sublicense, under NCD
copyrights in the Level 1 Software (in binary and source code
form), and to the minimum extent necessary under (a) claims of NCD
patents and patent applications that read on inventions
incorporated in the Level 1 Software (in binary and source code
form), and (b) trade secrets in Level 1 Software (in binary and
source code form) to copy, have copied, create derivatives of,
translate, display, distribute, perform, make, have made, use,
sell, offer to sell, import, modify and otherwise distribute Level
1 Software for distribution in Products or derivatives of Products
manufactured by or for Intel based on a Design or Designs which
are the subject of the buyout.
(c) NCD grants to Intel a non-exclusive, non-transferable, worldwide,
royalty-bearing license under NCD copyrights in the Level 2
Software (in binary form), and to the minimum extent necessary to
exercise the copyright license, under (a) claims of NCD patents
and patent applications that read on inventions incorporated in
the ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ (▇▇ ▇▇▇▇▇▇ ▇▇▇▇), ▇▇▇ (▇) trade secrets in
the Level 2 Software (in binary form) to copy, have copied,
display, distribute and perform Level 2 Software solely for
distribution with Products manufactured by or for Intel based on
a Design or Designs which are the subject of a buyout.
(i) The royalty shall be negotiated in good faith by the parties
but in no event shall royalties due be less favorable to
Intel than any royalty NCD charges to a third party
contemporaneously licensing the same or smaller volume of
Level 2 Software nor shall the terms and conditions of such
license be any more restrictive than a license NCD grants to
such a third party.
(ii) Sublicenses requiring any modifications to Level 2 Software
shall be directed to NCD.
1.5 The following restrictions apply to the licenses set forth above (in
SECTIONS 1.4(a), 1.4(b) and 1.4(c)):
(a) Notwithstanding the licensed rights stated above, Intel shall use
the NCD Software source code internally only; Intel shall hold NCD
Software source code in confidence and shall exercise the same
degree of care, but no less than reasonable care, in preventing
disclosure of NCD Software source code as Intel uses to protect
its own proprietary information. At a minimum, Intel shall limit
the disclosure of source code only to Intel employees and
consultants and contractors who have agreed to abide by
non-disclosure terms as protective as those set forth in this
Agreement and who have a need to know such information, and shall
not disclose the source code to any subsidiary, affiliate,
individual, corporation, other independent contractor,
consultant or other entity or third party without NCD's prior
written consent; and,
(b) Intel shall retain NCD's copyright notices on each copy of the NCD
Software (both binary and source code);
(c) Intel shall distribute NCD Software in binary form only (i) to
Intel customers or resellers pursuant to sublicenses at least as
protective of NCD as the terms of this subsection, and (ii) to end
users pursuant to a standard end user license; and,
(d) NCD shall own all derivatives and modifications of NCD Software
created by or for Intel and such derivatives and modifications
shall be licensed to Intel under SECTIONS 1.4(a), (b) and (c); and,
(e) Intel shall not distribute NCD Software as a stand-alone product,
nor permit any third party or sublicensee to do so;
CERTAIN INFORMATION IN THIS EXHIBIT 10.47 HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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INTEL AND NCD CONFIDENTIAL
(f) Distribution to the US government or US government contractors
shall be under restricted rights and shall include a restricted
rights legend as required under FARS and DFARS to protect NCD's
proprietary rights in the NCD Software.
1.6 NCD shall use commercially reasonable efforts to facilitate efforts by
Intel to obtain its own license to Level 3 Software
1.7 LICENSE TO INTEL UPON TERMINATION FOR CONVENIENCE OR EXPIRATION. Upon
termination by Intel under SECTION 2.3 of this EXHIBIT B, or upon
expiration of this Agreement at the end of it's term, and subject to
the payment terms therein and to the terms and conditions of this
agreement:
(a) NCD grants to Intel a non-exclusive, non-transferable, worldwide,
royalty-free license with right of sublicense, under NCD
copyrights in the Design(s) and Level 1 Software (and not
including Level 2 or Level 3 Software), and to the minimum extent
necessary under (a) claims of NCD patents and patent applications
that read on inventions incorporated in the Design(s) and Level 1
Software (and not including Level 2 or Level 3 Software), and
under (b) trade secrets in the Design(s) and Level 1 Software (and
not including ▇▇▇▇▇ ▇ and Level 3 Software) to copy, have copied,
create derivatives, translate, display, distribute, perform, make,
have made, use, sell, offer to sell, import, modify and otherwise
distribute Products based on a Design(s) and which may include
Level 1 Software.
(b) NCD grants to Intel the licenses described in SECTIONS 1.4(b) and
1.4(c) of this EXHIBIT B (without reference to the phrases "which
are the subject of the buyout" found therein).
(c) NCD shall assist Intel in obtaining a license to Level 3 Software
as set forth in EXHIBIT B, SECTION 1.6.
1.8 LICENSE TO INTEL FOR NCD TECHNICAL INFORMATION. Subject to the terms and
conditions of this Agreement, NCD grants Intel a non-exclusive,
nontransferable, world wide, royalty-free license, without right of
sublicense, under NCD copyrights, and to the minimum extent necessary,
under (a) claims of NCD patents and patent applications that read on
inventions incorporated in NCD Technical Information, and under (b)
trade secrets in NCD Technical Information as, to (i) copy, have copied,
create derivatives of, modify, translate, display, distribute
internally only (except where distribution of the NCD Technical
Information results inevitably from the distribution of the Product or
Intel silicon products which implement NCD Technical Information) NCD
Technical Information for use solely to develop a Design(s), and (ii)
to make, have made, use, sell, offer to sell, import, modify and
otherwise distribute, Intel silicon products which implement NCD
Technical Information subject to Intel's strict compliance with and
assent to the following restrictions and disclaimers:
(a) Intel shall not use NCD's name or any NCD trademark or trade name
in connection with Products or Intel silicon products except as
otherwise provided in this Agreement;
(b) Intel will indemnify, defend and hold NCD harmless from all loss,
cost, liability and expense incurred by NCD and any of its
subsidiaries which arise out of a claim concerning Intel's use or
implementation of the Design and NCD Technical Information and
manufacture and disposition of Product, including but not limited
to any warranty claims concerning the Design and Product. NCD
agrees to provide Intel with prompt notice of any such claims and
shall provide Intel with reasonable assistance (at Intel's
expense) in the defense or settlement of such claims. NCD shall
grant Intel sole authority and control of the defense or
settlement of the claim. NCD shall have no authority to settle
any action on Intel's behalf, and no costs or expenses shall be
incurred for the account of Intel without Intel's prior written
consent.
(c) DISCLAIMER. WITH REGARD TO THE NCD TECHNICAL INFORMATION, NCD
SOFTWARE AND ALL OTHER INFORMATION AND MATERIALS PROVIDED
CERTAIN INFORMATION IN THIS EXHIBIT 10.47 HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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PURSUANT TO THIS LICENSE AND THE WARRANTIES SET FORTH IN SECTION 8
OF EXHIBIT A ARE GIVEN IN LIEU OF ANY OTHER WARRANTY OF ANY KIND,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND NCD
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
OR FITNESS FOR A PARTICULAR PURPOSE. SPECIFICALLY, NCD MAKES NO
WARRANTIES WITH REGARD TO THE SUFFICIENCY OF THE NCD TECHNICAL
INFORMATION OR NCD SOFTWARE OR INTEL'S ABILITY TO IMPLEMENT EITHER.
(d) NCD shall own all derivatives and modification of the NCD
Technical Information created by Intel and such derivatives and
modifications shall be licensed to Intel under this SECTION 1.8.
1.9 CROSS-LICENSE FOR CONTRIBUTED SOFTWARE. The parties hereby grant each
other a non-transferable, non-exclusive, worldwide, royalty-free license,
with right of sublicense under each parties' copyrights, and to the
minimum extend necessary to exercise the copyright license, under (a)
claims of the parties' patents and patent applications that read on
inventions incorporated into the Contributed Software, and under (b)
trade secrets in each parties' Contributed Software as delivered, to
use, copy, have copied, create derivatives of, modify, translate,
display, distribute and perform Contributed Software as the parties may
exchange, in source or binary formats and in whole or in part, without
restriction for any purpose and without fee or right of accounting,
provided that any copyright notices in the Contributed Software remain
intact and are not removed. Each party shall own the derivatives it
creates.
1.10 Licenses for Joint Work. The license for Joint Work is set forth in
SECTION 2.1 of EXHIBIT A.
1.11 LICENSE TO NCD UPON INTEL'S TERMINATION FOR CONVENIENCE OR EXPIRATION.
Upon Intel's Termination for Convenience under SECTION 2.3 of this
EXHIBIT B or upon expiration of the Agreement at the end of its term,
and subject to the terms and conditions of this Agreement, Intel grants
NCD a non-exclusive, nontransferable, worldwide, royalty-free license,
with the right of sublicense, under Intel copyrights, and to the minimum
extent necessary to exercise the license granted in this SECTION 1.11
under (a) claims of Intel patents and patent applications that read on
inventions incorporated in Intel Software, and under (b) trade secrets
in the Intel Software to copy, have copied, create derivatives of,
modify, translate, display, perform and distribute Intel Software for
the purposes of developing, supporting and maintaining Intel Software
for use with Products, IA products, and products compatible with Intel
Architecture manufactured by or for NCD for sale or other transfer by
NCD to its customers or resellers, subject to NCD's strict compliance
with the exceptions and restrictions set forth in SECTIONS 1.1(a), (b),
(f), (g) and (h), as well as the following exceptions and restrictions:
(a) Intel and NCD shall negotiate in good faith for any appropriate
license fees, royalties or rights of accounting for NCD's
distribution of General LC Software which shall be consistent with
Tier 1 pricing; and
(b) NCD shall distribute Intel Software in binary form only (i) to NCD
customers or resellers pursuant to sublicenses at least as
protective of Intel as the terms of this subsection, and (ii) to
end users pursuant to a standard end user license.
1.12 NO OTHER LICENSES GRANTED. No license or other right is granted by
implication, estoppel or otherwise to either party except the licenses
and rights expressly granted in this SECTION 1 ("License Grants").
2. TERM, TERMINATION, AND REMEDIES:
2.1 The term of this Agreement is for three (3) years from the Effective
Date unless this Agreement is terminated earlier as provided in this
Section. The term of the Agreement shall be renewable for additional
one year terms should the parties so agree and elect.
2.2 Either party may terminate this Agreement if the other party:
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(a) breaches any material provision of this Agreement (or the Equity
Agreement which has been executed by the parties contemporaneously
with this Agreement) and fails to cure the same within thirty (30)
days after receipt of written notice from the other party;
(b) files or has filed against it a petition in bankruptcy, which is
not dismissed within (30) days of written notice thereof;
(c) has a receiver appointed to handle its assets or affairs, which is
not dismissed within thirty (30) days of written notice thereof;
(d) makes or attempts to make an assignment for the benefit of
creditors; or
(e) undergoes a change in control through merger or acquisition except
as provided in SECTION 11.2 of the Agreement.
2.3 At any time during the term of this agreement, Intel may terminate the
Project and this Agreement and all further obligations to NCD at any time
and without cause by giving NCD written notice.
If the Project is terminated by Intel without cause the following will
apply:
(a) If termination occurs within 12 months of the Effective Date of
this Agreement, Intel will pay NCD a one time cancellation fee of
five million dollars ($5,000,000) and will receive license rights
described in Section 1.7 of Exhibit B
(b) If termination occurs 12 months after the Effective Date of this
Agreement but within 24 months of the Effective Date, Intel will
pay NCD a one time cancellation fee of three million dollars
($3,000,000) and will receive license rights described in Section
1.7 of Exhibit B.
(c) If termination occurs 24 months after the Effective Date of this
Agreement but within 36 months of the Effective Date, Intel will pay
NCD a one time cancellation fee of one million dollars
($1,000,000) and will receive license rights described in Section
1.7 of Exhibit B.
Except as provided in this SECTION 2.3, Intel will have no liability or
obligation to NCD for terminating this Agreement without cause prior to
successful completion of the Project. Intel will not be responsible for
any anticipated profits or for any equipment purchased or other expenses
incurred by NCD for the Project or in anticipation of producing or
marketing the Product.
2.4 If NCD does not complete the Project and deliver the Design within the
time period provided in EXHIBIT D, or if Intel terminates this Agreement
under SECTION 2.2 above, in addition to Intel's other rights and
remedies provided in this Agreement or under applicable law or in
equity, NCD will and does hereby grant Intel the license rights set
forth in SECTION 1.7(a) and (b) of this EXHIBIT B, subject to the
following: if Intel terminates the Agreement pursuant to SECTION 2.2(e)
of this EXHIBIT B, as a result of Intel's unwillingness to approve an
assignment as set forth in SECTION 11.2 of the Agreement, Intel will pay
NCD 2 times the budgeted development costs agreed to in the then current
Statement of Work if such refusal occurs no later than six months after
the Effective Date of the associated Statement of Work, or the budgeted
development costs agreed to in the then current Statement of Work if
such refusal occurs more than six months after the Effective Date of the
associated Statement of Work but sooner than twelve months after the
Effective Date of the associated Statement of Work. If such refusal
occurs more than twelve months after the Effective Date of the
associated Statement of Work, no payment will be required by Intel.
2.5 The following sections will survive termination or expiration of this
Agreement:
EXHIBIT A
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1. Definitions
2. Ownership
4. Product Marking and Use of Intel Names and Trademarks
5.1(i) Royalty Payments
5.2(a) Chipset and CPU Pricing (as specified therein)
5.2(h) Royalty Payments
8. Warranties, Representations and Disclosures
9. Confidentiality; ▇▇▇-▇▇▇▇▇▇▇▇▇▇
▇▇. Limit of Liability
11. General Provisions
EXHIBIT B
All sections
EXHIBIT "C"
LEAN CLIENT SPECIFICATION
[*]
EXHIBIT "D"
STATEMENT OF WORK
1. DESIGN
1.1 DESCRIPTION OF DESIGN. NCD will design, develop, manufacture, certify,
and market at least one Lean Client system based on an Intel processor
and chipset per the schedule listed below in section 2.2. The system
will initially be capable of running NCD's implementation of the
Microsoft Windows-based Terminal software. NCD and Intel will jointly
work together to establish a roadmap for enhancing this design to
support the Intel Lean Client specification (version 1.0 or successor, as
mutually agreed). NCD will demonstrate the ability to manufacture the
system in volume for OEMs at a level of quality that is mutually agreed
to be substantially equivalent to that produced by Intel OPSD.
1.2 DESIGN SPECIFICATIONS. NCD will produce a detailed product
specification describing the Lean Client system that includes but is
not limited to all functions and features of the hardware design,
subsystem and component descriptions for all major functional areas of
the design, mechanical and environmental design requirements.
2. PROJECT PHASES AND PAYMENT
2.1 PROJECT PHASES. The Project will be developed in MULTIPLE Phases.
The first Phase will result in a Windows-based Terminal that is
equivalent in features and functionality to NCD's non-Intel
architecture WBT designs that are equipped with substantially
equivalent hardware, where physically and commercially feasible.
Succeeding Phases will result in software upgrades that provide
features and functionality that NCD and Intel mutually agree to meet
the requirements of the Intel Lean Client specification 1.0 (or
successor, as mutually agreed). The Phases and the work to be performed
in each Phase are specified below.
2.2 PHASE ONE:
(a) Statement of Work for Phase:
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NCD will design and develop hardware, firmware, and necessary
software to deliver a Lean Client system based on an Intel
Pentium (or other Intel CPU as mutually agreed) that runs
NCD's implementation of the Microsoft Windows-based Terminal
software. The first version of the software that NCD makes
available to OEMs and other customers will provide features
and functions that are substantially equivalent to those
provided on other NCD-designed Windows-based Terminals that
are equipped with substantially equivalent hardware.
(b) NCD deliverables:
NCD will conduct at least one hardware design review with
Intel to examine schematic and electrical analysis, component
placement, simulation, thermal analysis, power budget and
mechanical integrity.
NCD will conduct at least one software design review with
Intel to examine firmware and device driver implementation.
NCD will be responsible for obtaining certifications deemed
necessary by NCD to market the Lean Client system under its
own brand or under other OEM brands.
NCD will be obtaining the following certifications for the
Product:[*].
NCD will provide a version of its Windows-based Terminal
software that runs on Intel-supplied [*] lean client
systems for the purpose of creating a mutually-agreed
demonstration. NCD will integrate its base systems software
with Windows CE and with Intel-supplied device drivers and
other software as appropriate.
NCD will provide at Intel's expense 5 functional prototype
units according to the schedule listed below. A functional
prototype boots CE with no RDP and no software management
applications.
NCD will provide at Intel's expense 25 pilot units according
to the schedule listed below.
NCD will assist Intel in completing a manufacturing audit of
NCD's production and contract production facilities.
NCD will produce design materials and artifacts sufficient to
enable OEM customers to successfully evaluate the Lean Client
system, including but not limited to any appropriate options
for customization of firmware and operating environment or
custom hardware. In the event that Intel exercises its rights
to buy out the Design, NCD will have 45 days to deliver the
design, the Level I software, and associated documentation to
Intel.
(c) Intel deliverables:
Intel will provide the [*] and supporting materials, including
appropriate electronic databases and access to engineering
design support personnel.
Intel will provide at Intel's expense [*] prototypes for
evaluation by NCD.
Intel will provide ▇▇▇▇ of Materials analysis and participate
in design reviews, product roadmap reviews and manufacturing
audits.
Intel, at its option, will provide source code samples of
430TX firmware from standard PC BIOS and other appropriate
chipset configuration source code.
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(d) Milestones to be Achieved during Phase One, unless mutually agreed
otherwise, and subject to the parties mutually agreeing to the
specifications:
[*] [*]
2.3 PHASE TWO:
(a) Statement of Work for Phase:
NCD and Intel will work together to mutually define a Roadmap that
describes features and functionality that will be developed as
software upgrades to the Lean Client system produced in Phase One
to enable the system to meet the Intel Lean Client specification
1.0 (or successor, as mutually agreed).
(b) NCD deliverables:
NCD will coordinate and participate in joint meetings between
the parties to define mutually agreed-to features and
functionality that would be necessary to add to the Phase One
system to make it compliant with the Intel Lean Client
specification.
NCD will coordinate the production of a Roadmap that outlines
when the features and functionality that are mutually agreed
above will be made available.
NCD will work with Intel to evaluate whether or not existing
Intel technology or source code would be appropriate to
incorporate into the revised NCD software.
NCD will conduct at least one software design review with Intel
to examine firmware and device driver implementation.
NCD will make appropriate changes its OEM design documentation
to describe and account for the features and functionality
determined for this Phase.
NCD will provide at Intel's expense 25 pilot units according
to the schedule listed below.
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(c) Intel deliverables:
If requested by NCD, Intel will provide sample code fragments
and appropriate source code for Intel Architecture power
management, provided Intel has the rights to license such code
to NCD. This code will be designated IALC-only Software.
If requested by NCD, Intel will provide sample code fragments
and appropriate source code for PXE, consistent in content,
terms, and condition with the SDK that is licensed to other
OEMs. If mutually agreed, Intel will also provide additional PXE
source code. This software will be designated IALC-only Software.
If requested by NCD, Intel will provide sample code fragments
and appropriate source code for security enhancements,
provided Intel has the rights to license such code to NCD.
This software will be designated IALC-only Software.
If requested by NCD, Intel will provide sample code fragments
and appropriate source code for manageability enhancements,
provided Intel has the rights to license such code to NCD.
This software will be designated IALC-only Software.
(d) Milestones to be achieved during Phase unless mutually agreed
otherwise:
[*] [*]
(e) Acceptance Criteria
The completion of the review outlined above will constitute
acceptance of this Phase.
2.4 BUDGET. For the purposes of the buyout provisions specified in this
Agreement, the budgeted expenses for the development of the lean client
board and Level 1 software will be the total specified below:
Staffing expenses at $[*]/person-month
Hardware [*] $[*]
Software [*] [*]
Quality Assurance [*] [*]
Documentation [*] [*]
Manufacturing Eng [*] [*]
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INTEL AND NCD CONFIDENTIAL
Capital expenses
Board layout $[*]
No new plastic enclosures
No tooling costs
TOTAL $[*]
3. PROGRAM MANAGEMENT
3.1 Program Managers.
The program managers for the Project are:
For Intel: ▇▇▇▇▇ ▇▇▇▇▇▇ For NCD: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Program Manager Director, Product Planning
Intel Corporation Network Computing Devices
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ phone: (▇▇▇)▇▇▇-▇▇▇▇
phone: (▇▇▇)▇▇▇-▇▇▇▇ fax: (▇▇▇)▇▇▇-▇▇▇▇
fax: (▇▇▇)▇▇▇-▇▇▇▇ email:
email: ▇▇▇▇▇▇▇@▇▇▇.▇▇▇▇▇.▇▇▇
3.2 Project Locations.
All work on the Project will be performed at the following locations:
Network Computing Devices
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Network Computing Devices
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3.3 Change of Scope Procedure.
The parties agree to define in writing and implement a change control
procedure to cover any Intel or NCD requested engineering changes.
4. ACCEPTANCE OF DESIGN
4.1 Acceptance Test Plan.
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INTEL AND NCD CONFIDENTIAL
After NCD has delivered the production units and other appropriate
materials to Intel, Intel shall test the Design for acceptance in accordance
with the following criteria ("Acceptance Test Plan"):
The production units shall boot and pass the tests required by
Microsoft to meet the criteria of a Windows-based Terminal.
The production units shall meet the country and industry
certifications met by other NCD Windows-based Terminals.
4.2 Correction of Defects.
If the Design does not pass the Acceptance Test Plan, Intel will advise
NCD promptly and provide NCD with a description of any defects and
nonconformities. NCD must respond to any reports of defects or
nonconformities within ten (10) days with a plan for if and how a remedy
should be produced. NCD resubmit the Design and such other material as
Intel may reasonably request. Intel will then retest the Design for
acceptance using the Acceptance Test Plan. If the Design still does not
meet the Acceptance Test Plan, NCD will attempt within ten (10) days to
correct any remaining defects or nonconformities. If the Design still
fails to pass the Acceptance Test Plan, NCD will be in default and at
any time Intel may terminate the Project and exercise any of its rights
under Section 2.4 of EXHIBIT B.
5. USE OF INTEL SOFTWARE BY NCD
5.1 At the time Intel Provides software to NCD under this Statement of Work,
Intel will inform NCD whether the software is IALC-only Software, General
LC Software, or Contributed Software. All software Intel provides will be
IALC-only Software unless otherwise designated in writing by Intel.
EFFECTIVE DATE OF THIS STATEMENT OF WORK:
-------------------------------------
INTEL CORPORATION NETWORK COMPUTING DEVICES, INC.
/s/ ▇▇▇ ▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------- ----------------------------------
Signature Signature
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------- ----------------------------------
Printed Name Printed Name
GM President & CEO
---------------------------------- ----------------------------------
Title Title
3/31/98 March 6, 1998
---------------------------------- ----------------------------------
Date Date
EXHIBIT E
INTEL TECHNICAL INFORMATION
INFORMATION AND DOCUMENTATION
If Intel is to provide NCD with any information and documentation to use
in connection with the Project, such information and documentation is
listed below. Unless otherwise specified, all such information and
documentation is confidential information as defined in Section 9
of EXHIBIT A.
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DESCRIPTION OF INTEL TECHNICAL INFORMATION OR DOCUMENTATION
A. INTEL TECHNICAL INFORMATION:
[DESCRIBE]
B. OTHER INFORMATION OR DOCUMENTATION:
[DESCRIBE]
EQUIPMENT AND TOOLING
If Intel is to provide NCD with the equipment or tools to use in
connection with the Project, they will be listed below. The equipment
or tools will be provided to NCD, and NCD will return them to Intel in
good condition as provided below or upon termination of this Agreement,
whichever occurs first. If requested, NCD will sign Intel's standard
form of loaned equipment agreement covering the equipment and tools:
DESCRIPTION OF TOOLS AND EQUIPMENT DATE TO BE DELIVERED TO NCD DATE TO BE RETURNED TO INTEL
---------------------------------- --------------------------- ----------------------------
USE OF INTEL PERSONNEL
If Intel is to provide NCD with the assistance of any Intel personnel
in connection with the Project, the personnel to be provided, their
purpose and period for which they will be available to NCD is specified
below:
Personnel Purpose Period to be Provided
--------- ------- ---------------------
EXHIBIT "F"
MAINTENANCE AND SUPPORT OBLIGATIONS
NCD will have the following maintenance and support obligations during the
term of the Agreement:
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CUSTOMIZATION AND ENGINEERING SUPPORT.
NCD will support customization and engineering support requests by Intel or
Intel customers with the same degree of care and upon the same terms as NCD
provides to its own customers.
CONSULTING SERVICES.
NCD will provide consulting services to Intel on topics related to corporate
lean client solutions and the lean client segment. Consulting fees will not
exceed the lowest NRE rate charged by NCD to any other third party. Fees will
only be charged for work which is beyond the scope of collaborative work
under this Agreement and which is deemed in advance by Intel to be consulting
services work.
EXHIBIT "G"
NCD TECHNICAL INFORMATION
INFORMATION AND DOCUMENTATION
If NCD is to provide Intel with any information and documentation to use
in connection with the Project, such information and documentation is
listed below. Unless otherwise specified, all such information and
documentation is confidential information as defined in Section 9 of
EXHIBIT A.
DESCRIPTION OF NCD TECHNICAL INFORMATION OR DOCUMENTATION
A. NCD TECHNICAL INFORMATION:
[DESCRIBE]
B. OTHER INFORMATION OR DOCUMENTATION:
[DESCRIBE]
EQUIPMENT AND TOOLING
If NCD is to provide Intel with the equipment or tools to use in
connection with the Project, they will be listed below. The equipment
or tools will be provided to Intel, and
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Intel will return them to NCD in good condition as provided below or upon
termination of this Agreement, whichever occurs first. If requested, Intel
will sign NCD's standard form of loaned equipment agreement covering the
equipment and tools:
DESCRIPTION OF TOOLS AND EQUIPMENT DATE TO BE DELIVERED TO INTEL DATE TO BE RETURNED TO NCD
---------------------------------- ----------------------------- --------------------------
USE OF NCD PERSONNEL
If NCD is to provide Intel with the assistance of any NCD personnel in
connection with the Project, the personnel to be provided, their purpose
and period for which they will be available to Intel is specified below:
Personnel Purpose Period to be Provided
--------- ------- ---------------------
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