1
EXHIBIT 10.16
Citrix Confidential
CLIENT SOFTWARE LICENSE AGREEMENT
This Client Software License Agreement ("Agreement") is between Citrix
Systems, Inc., a Delaware corporation, with primary offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ("Citrix"), and Telechips, a Nevada
corporation, with primary offices at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
("Telechips"). The effective date of this Agreement is December 18, 1996
("Effective Date").
RECITALS
Citrix designs, manufactures, markets, and distributes certain computer
system software products. Telechips designs, manufactures, markets, and
distributes Telechips' Access Series products which are complementary to
the Citrix products.
Citrix and Telechips wish to cooperate such that Telechips may offer
Citrix products to its customers in combination with Telechips' existing
or planned products or technology.
These recitals are intended only to summarize the intent of this
Agreement. The actual terms and conditions of the Agreement are stated
below.
AGREEMENT
1. DEFINITIONS
1.1. "Citrix Product(s)" means the products specified in Exhibit A,
as such products may be adapted by Telechips for use in Telechips
Products pursuant to subsection 2.1 below, and includes all Product
Releases, Version Releases, and Update Releases provided by Citrix to
Telechips in connection with this Agreement.
1.2. "Non-Volatile Memory" means a storage unit which is dedicated to
storage of the Telechips Product and which retains the Telechips Product
when power is turned off, e.g., ROM or other silicon, and not including
diskettes, CD-ROM, hard disks or other general purpose peripherals.
1.3. "Telechips Product(s)" means the terminal products specified in
Exhibit B, which shall include the Citrix Product(s) in Non-Volatile
Memory, and which shall be marketed and distributed by Telechips as
approved by Citrix.
1.4. "FCS" of a Telechips Product means the first customer ship of
that Telechips Product for revenue by Telechips.
1
2
Citrix Confidential
1.5. "Product Release" means a release of a Citrix Product which is
designated by Citrix in its sole discretion as a change in the digit(s)
to the left of the decimal point in the Citrix Product version number,
({x}.xx).
1.6. "Version Release" means a release of a Citrix Product which is
designated by Citrix in its sole discretion as a change in the tenths
digit in the Citrix Product version number, (x.{x}x).
1.7. "Update Release" means a release of a Citrix Product which is
designated by Citrix in its sole discretion as a change in the
hundredths digit in the Citrix Product version number, (x.x{x}).
1.8. "Documentation" means the standard user guides developed and
released by Citrix for use with the Citrix Products.
1.9. "Documentation Media" means the diskettes, CDs, or other media
containing the machine-readable data files developed by Citrix which
contain the source for the Documentation.
1.10. "Master Software Media" means the standard microcomputer
diskettes, CDs, or other media containing the object code version of the
Citrix Product(s).
1.11. "Period" means those periods of time identified in Exhibit C.
1.12. "Level 1 Support" means receipt and management of all customer
support calls, and provision of fixes for known problems.
1.13. "Level 2 Support" means reproducing and isolating problems, and
jointly developing workarounds for problems and testing software fixes
with the other party.
1.14. "Level 3 Support" means providing software fixes for correction
of isolated problems, and jointly developing workarounds for problems
and testing software fixes with the other party.
1.15. "ICA " means the Citrix architecture and proprietary protocols
which define communications between server computers and workstations or
terminals such that the intelligence and memory resident in the
workstation or terminal is efficiently exploited. ICA protocols relate
to functions including, but not limited to the following: distributed
Windows graphical user interface, full screen text, virtual channels,
data packet framing, compression, and encryption.
1.16. "Reseller" shall mean distributors and subdistributors within
Telechips' distribution channel which market and deliver Telechips
Products in the form in which the products are received from Telechips.
2
3
Citrix Confidential
2. LICENSE GRANT
2.1. License to adapt software. Each Citrix Product as delivered by
Citrix may include certain software in source code form ("Source Code
Fragments"), as specified in Exhibit A. Subject to the terms and
conditions contained in this Agreement, Citrix grants to Telechips a
nonexclusive and nontransferable license to modify, delete, or replace
these Source Code Fragments within each Citrix Product or, if
applicable, to use the ICA 3.0 materials solely in order to adapt that
Citrix Product for use in Telechips Products. No other rights to any
Citrix Product source code are granted.
2.2. License to copy software. Subject to the terms and conditions
contained in this Agreement, Citrix grants to Telechips a
nontransferable and nonexclusive license to copy the Citrix Products
from the Master Software Media to Non-Volatile Memory for incorporation
into Telechips Products.
2.3. License to copy documentation. Subject to the terms and
conditions contained in this Agreement, Citrix grants to Telechips a
nontransferable and nonexclusive right to copy the Documentation Media
solely for the purpose of distributing printed copies of the
Documentation with Telechips Products to which the Documentation refers,
pursuant to subsection 2.5 below. Telechips may reproduce the
Documentation as exact copies or, subject to subsection 8.6 below,
Telechips may produce derivative works of the Documentation. In either
case, the quality of produced documentation by Telechips must be equal
to or better than the quality of Documentation produced by Citrix. Prior
to distribution Telechips will deliver to Citrix a copy of each document
it produces based on the Citrix Documentation, for review and approval
by Citrix, which approval shall not be unreasonably withheld.
2.4. Restriction on license. Telechips agrees that, except as
specified in subsection 2.1 above, it will not make modifications to,
decompile, reverse engineer or otherwise decode or alter the software
delivered on the Master Software Media.
2.5. License to distribute. During the term of, and subject to the
terms and conditions of, this Agreement, Citrix grants to Telechips, and
Telechips accepts, the nonexclusive, nontransferable right to
incorporate the Citrix Product(s) in Non-Volatile Memory, in the
Telechips Product(s), as specified in subsection 2.2 above, only in the
manner provided in Exhibit B, and to distribute such Citrix Product(s)
so incorporated in Telechips Products subject to the restrictions of
subsection 11.3 below.
2.6. Terms of Distribution. Telechips agrees that it will distribute
the Telechips Products pursuant to such license agreements as Telechips
customarily uses to distribute other similar software. Except as
permitted in this Agreement, Telechips shall contractually prohibit, and
shall require its distributors and other resellers to contractually
prohibit, end users and all entities in the chain of distribution from:
(i) using, copying (except as necessary for back-up or archival purposes
or to the extent expressly permitted
3
4
Citrix Confidential
by applicable law and to the extent that Citrix is not permitted by that
applicable law to exclude or limit such rights), modifying, or
transferring the software or any copy in whole or in part, or granting
any rights in the software or accompanying documentation; (ii)
translating, reverse engineering, decompiling, disassembling, or
creating derivative works based on the software or the accompanying
documentation; (iii) renting or leasing the software; or (iv) removing
any proprietary notices, labels, or marks on the software and
accompanying documentation.
3. TERMS OF PAYMENT
3.1. Price and payment. Telechips agrees to pay Citrix the amount(s)
and within the times stated in this Section 3 and in Exhibit C.
Telechips' obligation to pay such amounts is unconditional except as is
otherwise expressly stated to the contrary herein. The royalties due to
Citrix for each Period will be paid within fifteen (15) business days
after the end of each Period. The royalties due to Citrix at the end of
a Period will be calculated by multiplying the number of copies of
Citrix Product(s) distributed by Telechips during that Period by the Per
Copy License Fee. This calculation may then be modified by Telechips as
appropriate to allow for copies exempt from royalties pursuant to
subsection 3.4 below. A finance charge of one percent per month, or, if
less, the maximum percentage allowed by applicable law, will be assessed
on all amounts that are past due.
3.2. Reports. Within fifteen (15) business days of the end of each
Period, Telechips will deliver to Citrix a certified report in a form
reasonably acceptable to Citrix that details for each Citrix Product and
each Telechips Product (i) the number of copies distributed by Telechips
during the Period, by customer zip code in a format reasonably
acceptable to Citrix, (ii) the number of such distributed copies which
are exempt from royalties per subsection 3.4 below, and (iii) the
license fee due Citrix on copies distributed during that Period.
3.3. Taxes. Prices stated are exclusive of any federal, state,
withholding, municipal or other governmental taxes, duties, licenses,
fees, excises or tariffs now or hereafter imposed on Telechips'
production, storage, licensing, sale, transportation, import, export or
use of Citrix Products or Telechips Product(s). Such charges shall be
paid by Telechips, or in lieu thereof, Telechips shall provide an
exemption certificate acceptable to Citrix and the applicable authority.
Citrix, however, shall be responsible for all taxes based upon its net
income.
3.4. Copies exempt from royalties. No royalty shall accrue to Citrix
for copies of Citrix Product(s) (i) used solely for development,
testing, and/or technical support purposes; (ii) shipped as replacement
copies for copies found to be defective in materials, manufacture, or
reproduction; (iii) which are Update Releases provided to Telechips by
Citrix pursuant to subsection 7.2 below and are shipped by Telechips as
an update of a Citrix Product copy for which Telechips has paid to
Citrix the applicable royalty; (iv) used exclusively for demonstration
or promotional purposes, such copies not to exceed
4
5
Citrix Confidential
one hundred (100) copies for each Version Release; or (v) provided to
Citrix; so long as, in all cases above, such copies are provided by
Telechips for free or for Telechips' reasonable cost of goods plus
shipping and handling.
4. DELIVERY
For each Citrix Product specified in Exhibit A, at mutually agreed upon
delivery dates, Citrix will deliver to Telechips (i) two (2) copies of
the Master Software Media and two (2) copies of the Documentation Media
to use for the purposes and under the restrictions described herein.
5. ACCEPTANCE AND WARRANTY
5.1. Acceptance. Within thirty (30) days after Citrix' delivery to
Telechips of any Product Release, Version Release, or Upgrade Release of
a Citrix Product licensed hereunder, Telechips shall either accept such
Citrix Product or report material deviations from specifications in
writing. Material conformance to specifications shall solely determine
acceptability. If Telechips does not report material deviations from
Product specifications within the thirty (30) day period, or if
Telechips ships a Telechips Product to a customer for revenue, Telechips
shall be deemed to have accepted the Citrix Product.
5.2. Deviations. If Telechips reports any material deviations from
Citrix Product specifications prior to acceptance then Citrix shall have
sixty (60) days to correct such deviations. Upon delivery of a corrected
release of the Citrix Product to Telechips, Telechips shall have thirty
(30) days in which to re-evaluate the corrected release for material
conformance to specifications as provided in subsection 5.1 above. If
any material deviations from specifications reported before acceptance
are not eliminated in the sixty (60) day correction period, then, as
Telechips' sole remedy (i) the Citrix Product may be retained at an
equitable adjustment in price as may be agreed by the parties, (ii) the
correction period may be extended as may be agreed by the parties, or
(iii) failing any agreement, Telechips may reject the Citrix Product. If
Telechips rejects any Citrix Product Release or Version Release, the
parties shall renegotiate in good faith Telechips' payment obligations
therefor pursuant to Exhibit C.
5.3. Disclaimer of warranty. Apart from Citrix' obligations to
provide error corrections and support the Citrix Product(s) pursuant to
subsections 5.2 and 7.2, CITRIX DISCLAIMS ANY AND ALL OTHER WARRANTIES
AND CONDITIONS OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE, INCLUDING THOSE FOR MERCHANTABILITY, SATISFACTORY QUALITY,
AND/OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY EXCLUDED.
5.4. Unreleased product. Telechips shall not distribute for revenue
any release of a Citrix Product in any form until Citrix gives its
written approval of such Citrix Product for such distribution by its OEM
customers generally or until Telechips receives the ▇▇▇▇▇
▇
6
Citrix Confidential
form of the Master Software Media for such Citrix Product as declared in
writing by Citrix.
6. TRAINING
6.1. Technical training. Citrix shall provide to Telechips: one and
one half (1 1/2) days of "Train the Trainer" sales training; and two (2)
days of "Train the Trainer" technical support training. All training
shall be conducted at Citrix' facility at Citrix standard rates. Citrix
shall also provide to Telechips two (2) weeks of "on the phone" support
training to at least one Telechips Level 2 support engineer at Citrix'
facility, at Citrix standard rates.
7. SUPPORT
7.1. Telechips. Telechips shall be responsible for ▇▇▇▇▇ ▇ and
Level 2 support for the Citrix Product(s). For a period of three months
following the first shipment of Telechips Product(s) by Telechips,
Citrix shall provide appropriate consulting support as required to
Telechips for these efforts. Citrix shall have no responsibility to deal
directly with Telechips' customers. Telechips shall keep its Citrix
Product(s) support capabilities current by attending Citrix training
classes, as appropriate, at Citrix' regular class rate.
7.2. Citrix. Citrix shall be responsible for the joint development of
workarounds and for Level 3 support for unmodified portions of Citrix
Product(s) relative to deviations from product specifications, such
support to be provided without charge to Telechips. If Telechips reports
any deviations from specifications in a Citrix Product following
acceptance and during the term of this Agreement, then, as Telechips'
sole remedy, Citrix agrees to use reasonable efforts to correct such
deviations. Notice to Citrix of any deviations from product
specifications shall be made in writing using Citrix' standard problem
reporting mechanisms as they may be updated from time to time, or using
the notice provisions of subsection 15.5 below. Citrix' obligations
under this subsection as to a particular release of a Citrix Product
shall cease ninety (90) days after delivery to Telechips of an Update
Release, Version Release, or Product Release with a higher version
number which has been accepted pursuant to Section 5 above. Any free
Update Releases provided by Citrix to its customers generally shall be
provided to Telechips without charge within thirty (30) days of the
general availability of such Update Releases.
8. ADDITIONAL OBLIGATIONS OF TELECHIPS
8.1. Telechips Products for Citrix use. As soon as possible, and at
least thirty (30) days prior to FCS of each Telechips Product, Telechips
shall deliver to Citrix, for Citrix' internal use, two (2) Telechips
computing devises containing the Telechips Products. From time to time
Telechips shall promptly upgrade or replace, as appropriate, these
Telechips Products to ensure that they are representations of the
current version of each Telechips Product.
6
7
Citrix Confidential
8.2. Quality control. Telechips agrees to exercise the highest level
of quality assurance, with regard to media, replication, and testing
procedures, generally in use in the computer software industry in
connection with Telechips' exercise of the rights granted in Section 2
above.
8.3. Copyright and patent notices. Telechips agrees not to alter or
remove any copyright and/or patent notices in the Citrix Products.
Telechips agrees to comply with the copyright and patent notice
requirements as set forth in Exhibit D.
8.4. Serialization. Telechips agrees to comply with Citrix
specifications for product serialization as provided and as amended from
time to time.
8.5. Citrix attribution. Telechips agrees to cause a screen providing
attribution to Citrix, in accordance with the requirements specified in
Exhibit D, to appear on each Telechips Product upon initiation of use of
the Telechips Product. Citrix understands that for certain Telechips'
client applications, the initiation/attribution screens will be present,
but may not appear as part of the specific application's presentation
sequence.
8.6. Product and Version release numbers. Telechips shall market each
release of each Telechips Product with reference to the ICA
version/release number assigned by Citrix to the Citrix Product,
contained in the Telechips Product. As a result of this, resellers
and/or end users must be easily able to determine correspondence between
Telechips Product releases and ICA version/release levels.
8.7. Telechips Product translation. Telechips agrees that it may
translate neither the Documentation nor the Citrix Products to languages
other than U.S. English without the prior written consent of Citrix.
9. TERM AND TERMINATION
9.1. Initial and renewal terms. The initial term of this Agreement
("Initial Term") shall run for two (2) years from the Effective Date.
This Agreement shall renew automatically each year for a one year term,
unless either party gives sixty (60) days written notice of its intent
to allow this Agreement to expire at the end of the then current term.
9.2. Termination for cause. If either party defaults in the
performance of any material provision of this Agreement, then the
non-defaulting party may give written notice to the defaulting party
that, if the default is not cured within sixty (60) days the Agreement
will be terminated. If the non-defaulting party gives such notice, and
the default is not cured during the sixty (60) day period, then the
Agreement will terminate immediately upon notice by the non-defaulting
party.
9.3. Termination for insolvency. This Agreement may be terminated by
either party upon notice, in the event that any of the following
occur(s): (i) voluntary institution by
7
8
Citrix Confidential
the other party of insolvency, receivership, bankruptcy, or any other
proceedings for the settlement of the other party's debt; (ii)
involuntary institution of insolvency, receivership, bankruptcy, or any
other proceedings for the settlement of the other party's debt; which
proceedings are not resolved within sixty (60) days, (iii) the making of
a general assignment by the other party for the benefit of creditors; or
(iv) the dissolution of the other party.
9.4. Return of materials. In addition to the Master Software Media
and the Documentation Media, all of Citrix' trademarks, marks, trade
names, patents, copyrights, designs, drawings, formulas or other data,
photographs, samples, literature, and sales aids of every kind will
remain the property of Citrix. Within thirty (30) days after the
termination or expiration of this Agreement, Telechips will prepare all
such items in its possession, and will collect such materials in
Reseller's possession, for shipment as Citrix may direct, at Citrix'
expense. Telechips will not make or retain any copies of any
confidential items or information which may have been entrusted to it.
Effective upon the termination or expiration of this Agreement,
Telechips will cease to use all trademarks and trade names of Citrix.
9.5. Destruction of inventory. Upon expiration or earlier termination
of this Agreement, Telechips shall destroy or erase (as applicable), and
shall certify to Citrix the destruction or erasure of: (i) all copies of
the Citrix Product(s) and Telechips Product(s) in any form in the
possession of Telechips or any Reseller, including all Master Software
Media, Documentation and Documentation Media, and (ii) all other
materials related to the Citrix Product(s) or Documentation in
Telechips' possession or control not otherwise dealt with under
subsection 9.4 above.
9.6. Survival of certain terms. The provisions of Sections 3 (as to
payment for distribution and copying prior to termination or
expiration), 5.3, 9.4, 9.5, 10, 11, 13, 14, and 15, as well as end user
licenses properly granted by Telechips, will survive the termination or
expiration of this Agreement for any reason. All other rights and
obligations of the parties will cease upon termination or expiration of
this Agreement.
10. AUDITS
10.1 Record keeping. Telechips agrees to maintain and to ensure that
any Reseller maintains, until two (2) years after the termination of
this Agreement, complete books, records and accounts regarding all
copying and distribution activities pursuant to Section 2 above and the
payments due to Citrix thereon.
10.2. Audit rights. Telechips agrees to allow Citrix the right to
audit and examine such books, records and accounts during Telechips' or
Reseller's (as applicable) normal business hours to verify the accuracy
of the reports made to Citrix under subsection 3.2 above. In the event
such examination leads to a determination that Telechips has made more
than the authorized number of copies and/or has not paid for all of the
copies of Citrix Products made, Telechips agrees to pay, in addition to
any damages (including
8
9
Citrix Confidential
direct, indirect and consequential) to which Citrix might be entitled,
all unpaid royalties which should have been paid, plus interest thereon
from the date the royalty payment should have been made, at the rate of
one percent per month (or, if less, the maximum allowed by applicable
law); provided, however, that if the audit reveals underpayment of five
percent (5%) or more of the amount that should have been paid for the
period audited, then, in addition to the above payments, Telechips shall
pay Citrix' auditing expense for such examination. Citrix will credit to
Telechips any overpayments discovered in the audit.
11. PROPERTY RIGHTS AND CONFIDENTIALITY
11.1 Property rights. Telechips agrees that Citrix owns all right,
title, and interest in the Citrix Product(s), including, without
limitation, the Master Software Media and the Documentation Media, now
or hereafter subject to this Agreement, and in all of Citrix' patents,
trademarks, trade names, inventions, copyrights, know-how, and trade
secrets relating to the design, manufacture, operation or service of the
Citrix Product(s).
11.2. Confidentiality. Telechips acknowledges that by reason of its
relationship to Citrix hereunder it will have access to certain
information and materials concerning Citrix' business, plans, customers,
technology, and Citrix Products that are confidential and of substantial
value to Citrix, which value would be impaired if such information were
disclosed to third parties. Telechips agrees that it will not use the
confidential information for any purpose other than the development and
support of the Telechips Product in accordance with the terms of this
Agreement and shall not use the confidential information in any other
way for its own account or the account of any third party, nor disclose
to any third party, any such confidential information revealed to it by
Citrix (including, but not limited to, the Source Code, the Source Code
Fragments and the ICA 3.0 Protocol specifications). Telechips shall take
every reasonable precaution to protect the confidentiality of such
information. Upon request by Telechips, Citrix shall advise whether or
not it considers any particular information or materials to be
confidential. Telechips shall not publish any technical description of
the Product beyond the description published by Citrix. In the event of
termination of this Agreement, there shall be no use or disclosure by
Telechips of any confidential information of Citrix, and Telechips shall
not manufacture or have manufactured any Products utilizing any of
Citrix' confidential information. The provisions of this Section shall
not apply to information: which is (or becomes) available to the public
other than by breach of this Agreement or of any other duty; which is
already in Telechips' possession prior to disclosure by Citrix or is
independently obtained by Telechips in circumstances under which
Telechips is free to disclose it; or which is trivial or obvious.
11.3. International distribution. Telechips shall not distribute
Products outside of the geographical boundaries of the following
countries without Citrix' prior written consent: United States, Canada,
Australia, Japan, the European Union, Sweden, Norway and Finland. In the
event Telechips desires to distribute Products outside of the
geographical boundaries set forth above, Citrix and Telechips shall
negotiate in good faith regarding
9
10
Citrix Confidential
the expansion of the list to include additional countries that provide
adequate protection for Citrix' and its suppliers' proprietary rights
through copyright, trade secret, patent or other laws.
12. TRADEMARKS AND TRADE NAMES
12.1. Use of trademarks and trade names. Telechips is obligated to use
the applicable Citrix trademarks and trade names with respect to the
Telechips Product(s) in accordance with the requirements and guidelines
specified in Exhibit E. In accordance with Exhibit E, Telechips shall
submit to Citrix for prior approval any advertising, packaging,
promotional, or other materials prepared by or for Telechips which
include any Citrix trademarks or trade names. Citrix shall have the
right to make reasonable updates to the requirements and guidelines in
Exhibit E from time to time. Notwithstanding the foregoing, Citrix shall
not attempt to cause Telechips to adopt any particular advertising,
promotional or marketing plan.
12.2. ICA certification process. In the event that Citrix implements
an ICA certification process, all subsequent Telechips Products will be
developed so as to meet the certification requirements and will be
labeled in accordance with the program's specifications. Certification
shall be performed at no charge to Telechips.
12.3. Attribution. Telechips agrees to make explicit mention of the
Citrix company name and the ICA and WinFrame trademarks in all press
releases and product announcements related to the licensed products.
Telechips also agrees to make its best reasonable effort to ensure that
the Citrix company name and the ICA and WinFrame trademarks are
mentioned in all press articles related to the licensed products.
13. INDEMNIFICATION
13.1. Defense or settlement of claims. Telechips agrees that Citrix
has the right to defend, or at its option to settle, and Citrix agrees,
at its own expense to indemnify or at its option to settle, any claim,
suit or proceeding brought against Telechips or its customer based on a
claim that a Citrix Product infringes upon any United States patent or
copyright or violates the trade secret rights of any United States
party, (hereinafter "Infringement Claims"); provided Citrix is notified
promptly in writing of an Infringement Claim and has sole control over
its defense or settlement, and Telechips and/or its customer provides
reasonable assistance in the defense of the same.
13.2. Infringement cures. Following notice of an Infringement Claim,
or if Citrix believes such a claim is likely, Citrix may at its sole
expense and option, (i) procure for Telechips the right to continue to
market, use and have others use, the alleged infringing Citrix
Product(s), (ii) replace or modify the appropriate Citrix Product(s) to
make them non-infringing, or (iii) accept return of the Citrix
Product(s) and refund as appropriate payments made therefor by
Telechips.
10
11
Citrix Confidential
13.3. Limitation. Citrix shall have no liability for any infringement
claim based on Telechips' (i) use or distribution of any product after
Citrix' notice that Telechips should cease use or distribution of such
product due to an infringement claim, or (ii) modification of the Citrix
Product other than by Citrix, or combination of a Citrix Product with
non-Citrix programs, data, hardware, or other materials, if such
infringement claim would have been avoided by the exclusive use of the
unmodified Citrix Product alone. For all infringement claims to which
this subsection is applicable, Telechips agrees to indemnify and defend
Citrix, provided Telechips is notified promptly in writing of an
infringement claim and has sole control over its defense or settlement,
and Citrix and/or its customer provides reasonable assistance in the
defense of the same.
13.4. Entire liability. THE FOREGOING PROVISIONS OF THIS SECTION 13
STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF CITRIX, AND THE EXCLUSIVE
REMEDY OF TELECHIPS AND ITS CUSTOMERS, WITH RESPECT TO ANY ALLEGED
INTELLECTUAL PROPERTY INFRINGEMENT BY THE CITRIX PRODUCT(S), OR ANY PART
THEREOF.
13.5. Other third party claims. Except for Infringement Claims which
Citrix is obliged to settle or defend under this Section 13 Telechips
agrees to indemnify and hold Citrix harmless against any cost, loss,
liability, or expense (including attorneys' fees) arising out of third
party claims against Citrix as a result of Telechips' or Reseller's
copying, use or distribution of the Telechips Product(s) and Telechips'
exercise of the license rights granted under this Agreement.
14. LIMITATION OF LIABILITY
CITRIX' TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT, THE TERMINATION
THEREOF, AND/OR LICENSE OF THE PRODUCTS AND DOCUMENTATION HEREUNDER,
SHALL BE LIMITED TO THE AMOUNT HAVING THEN ACTUALLY BEEN PAID BY
TELECHIPS TO CITRIX UNDER THIS AGREEMENT. IN NO EVENT SHALL CITRIX BE
LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. IN NO EVENT SHALL
CITRIX BE LIABLE TO TELECHIPS OR ANY OTHER ENTITY FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, HOWEVER CAUSED AND ON ANY
THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT,
NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT CITRIX HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY
PROVIDED HEREIN. CITRIX' LIMITATION OF LIABILITY IS CUMULATIVE, WITH ALL
CITRIX' EXPENDITURES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE
LIMIT. THE EXISTENCE OF CLAIMS OR SUITS AGAINST MORE THAN ONE CITRIX
PRODUCT LICENSED UNDER THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE
LIMIT. IN NO EVENT SHALL ANY LICENSORS OR
11
12
Citrix Confidential
SUPPLIERS OF CITRIX BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR
OTHER DAMAGES ARISING OUT OF THIS AGREEMENT.
15. GENERAL PROVISIONS
15.1. Entire agreement; modifications. This Agreement, including the
attached Exhibits, sets forth the entire agreement and understanding of
the parties relating to the subject matter herein and merges all prior
discussion between them. No modification or amendment to this Agreement
shall be effective unless in writing and signed by both parties. The
terms and conditions on any Telechips purchase orders or similar
documents shall not apply. Any restrictive endorsement on any check or
any instrument of payment to Citrix which purports to alter this
Agreement or any of the parties' rights shall be of no force and effect,
and the payee party shall be free to negotiate such checks
notwithstanding such void endorsement.
15.2. Confidentiality of agreement. The parties agree that the terms
and conditions of this Agreement shall be treated as confidential
information, provided, however, that each party may disclose the terms
and conditions of this Agreement: (i) as required by any court or other
governmental body; (ii) as otherwise required by law; (iii) to legal
counsel of the parties; (iv) in confidence, to accountants, banks,
investors and other financing sources and their advisors; (v) in
confidence, in connection with the enforcement of this Agreement or
rights under this Agreement; or (vi) in confidence, in connection with
an actual or proposed merger, acquisition, or similar transaction.
15.3. Independent contractors. The relationship between Citrix and
Telechips established by this Agreement is that of independent
contractors, and nothing contained in this Agreement shall be construed
as creating a partnership, joint venture or agency relationship, or as
granting a franchise.
15.4. Governing law and jurisdiction. This Agreement shall be governed
by and construed under the laws of the State of Florida without regard
to conflict of law principles, and Telechips consents to personal and
exclusive jurisdiction and venue in the state and federal courts sitting
in Broward and Dade counties, Florida. Process may be served on either
party by using the notice provisions of subsection 15.5 below.
15.5. Notices. Any notice required or permitted by this Agreement will
be in writing and will be sent by prepaid registered or certified mail,
return receipt requested, or by overnight courier, charges prepaid, with
a confirming fax; to the appropriate address set forth at the beginning
of this Agreement, or to such other address for which the relevant party
gives appropriate notice. Notice shall be deemed to have been given when
delivered or, if delivery is not accomplished by some fault of the
addressee, when tendered.
15.6. Force majeure. Nonperformance of either party will be excused to
the extent that performance is rendered impossible by strike, fire,
flood, governmental acts or orders or
12
13
Citrix Confidential
restrictions, failure of suppliers, or any other reason where failure to
perform is beyond the control of, and not caused by the negligence of,
the non performing party.
15.7. Successors and assigns. Neither this Agreement nor any of the
rights or obligations of Telechips arising under this Agreement may be
assigned or transferred, by operation of law or otherwise, without
Citrix' prior written consent, such consent not to be unreasonably
withheld. Any attempted such assignment or transfer shall be void and
shall result in the immediate and automatic termination of this
Agreement. Subject to this restriction, this Agreement will be binding
upon and inure to the benefit of the parties hereto, their successors
and assigns.
15.8. Severability; waiver. If any provision of this Agreement is held
to be invalid by a court of competent jurisdiction, the remaining
provisions will nevertheless remain in full force and effect. Citrix and
Telechips agree to replace any invalid provision with a valid provision
which most closely approximates the intent and economic effect of the
invalid provision. The waiver by either party of a breach of any
provision of this Agreement by the other will not operate or be
interpreted as a waiver of any other or subsequent breach. All waivers
must be in writing.
15.9. Government End-Users. Citrix Products and Documentation are
"commercial items" as that term is defined in 48 C.F.R. 2.101 (October
1995) consisting of "commercial computer software" and "commercial
computer software documentation" as such terms are used in 48 C.F.R.
12.212 (September 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R.
227.7202-1 through 227.7202-4 (June 1995), if the Citrix Products which
Telechips licenses or acquires hereunder are for or on behalf of the
U.S. Government or any agency or department thereof, the software and
the documentation are licensed hereunder (i) only as a commercial item,
and (ii) with only those rights as are granted to all other end users
pursuant to the terms and conditions of this Agreement.
15.10. xport controls. Telechips agrees to comply with all United
States export regulations and restrictions in connection with this
Agreement.
15.11. Headings. The headings used in this Agreement and the attached
Exhibits are intended for convenience only and shall not be deemed to
supersede or modify any provisions.
15.12. ounterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original and all of which
together will constitute one instrument.
13
14
Citrix Confidential
IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date
set forth above.
CITRIX SYSTEMS, INC. TELECHIPS CORPORATION
University Drive, Suite 700 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By: By:
-------------------------- --------------------------
Name: Name:
-------------------------- --------------------------
Title: Title:
-------------------------- --------------------------
14
15
EXHIBIT A
CITRIX PRODUCTS
Citrix Products shall be the Citrix Windows Client ("Client") Software in binary
format for ICA 3.0 Protocol support.
15
16
Citrix Confidential
EXHIBIT B
TELECHIPS PRODUCTS
Telechips' Access Model products.
Telechips Products must not implement any modifications or extensions to the ICA
Protocol. They must connect to and communicate with Citrix and Citrix based
application server technology in accordance with the appropriate ICA product and
Version Release number specifications as defined in the ICA 3.0 Protocol
specifications.
The operating environment which may run on the Telechips Products concurrently
with the ICA Protocol is the Windows 3.1 compatible environment ("Authorized
Environment"). In the event that Telechips desires to add additional operating
environments to the Authorized Environment, the parties agree to negotiate in
good faith to expand the definition of the Authorized Environments.
Citrix reserves the right to require Telechips to go through a reasonable
certification to ensure quality and complete ICA compatibility for Telechips
Products.
16
17
Citrix Confidential
EXHIBIT C
PAYMENT SCHEDULE
A. Nonrefundable Initial Design Consultation, Training, and Ongoing Support
Fees (for the services described in Sections 6 and 7 of the Agreement)
[ * ] payable upon execution of the Agreement.
Source Code and/or Full ICA Protocol Specification (ICA 3.0 Materials)
(if applicable)
[ * ] payable upon execution of the Agreement or payable within five (5)
days of written request for ICA 3.0 Materials.
B. Per Copy License Fees
First 10,000 units: [ * ] per copy
Next 50,000 units: [ * ] per copy.
All additional units:[ * ] per copy.
These fees shall be computed separately for each Citrix Product.
C. Period
Each three (3) month period after FCS shall be a "Period."
D. Minimum Royalties.
During the first twelve (12) months after FCS of the first Telechips
Product, Telechips shall pay to Citrix nonrefundable minimum royalties
of [ * ], as follows:
1. [ * ] upon execution of this Agreement.
2. [ * ] upon FCS, for the first Period.
3. [ * ] for the second Period after FCS.
4. [ * ] for the third Period after FCS.
5. [ * ] for the fourth Period after FCS.
* Portions of this exhibit have been excluded pursuant to a confidential
treatment request.
17
18
Citrix Confidential
Payments 2 - 5 shall be made on or before the first day of the Period
and shall be credited toward the regular royalty payment for that Period
made in accordance with subsection 3.1 of this Agreement. If such
credits exceed actual accrued royalties for that Period, the excess
shall constitute prepaid royalties creditable against future actual
accrued royalties.
18
19
Citrix Confidential
EXHIBIT D
CITRIX ATTRIBUTION, NOTICES, TRADEMARKS
FOR CITRIX CLIENT PRODUCTS
The Citrix OEM Client Splash Screen Logo: "Citrix(R) ICA(R)"
Attribution
The "Citrix(R) ICA(R)" logo must be displayed on the client's initial
load screen as a graphic image.
Sizing and Placement Requirements
The "Citrix(R)ICA(R)" logo must be a minimum of 32 x 32 pixels on the
initial load screen.
Copyright and Patent Notices
Copyright and/or patent notices must be incorporated into Telechips's
product packaging as follows:
On initial load screen:
Citrix copyright notice.
Logo Artwork
The "Citrix(R) ICA(R)" logo must never be altered and must be reproduced
from the supplied Citrix reproduction sheet or from diskette using the supplied
EPS file. Citrix will provide authorized OEMs with camera-ready artwork of the
"Citrix(R) ICA(R)" Splash Screen. Telechips may not alter this artwork in any
way. The words "Citrix(R) ICA(R)" as they appear in the logo are the only words
and the only typeface approved for use and may not be modified. The (R) must
appear immediately following the words Citrix and ICA .
Color Scheme
The following Splash Screen colors are the be used:
ICA text 100% PMS Reflex Blue
Distributed Windows text 100% Black
Citrix Logo Text 80% Black
Citrix Logo Dots 100% Warm Red
Window 100% Warm Red
Globe 70% PMS Reflex Blue
Laptop 100% Black with White outline and
White monitor screen
Border 100% Black
The logo must always be self-contained within a white background.
19
20
Citrix Confidential
Spacing
The "Citrix(R) ICA(R)" logo must stand alone. A minimum amount of space,
1/4 inch, must be left between the logo and any other object such as type,
borders, edges, etc.
20
21
Citrix Confidential
EXHIBIT E
ADVERTISING GUIDELINES
1. TRADEMARK AND LOGO GUIDELINES
All references to Citrix products or to the ICA protocol shall include the
appropriate Citrix trademarks and shall be in accordance with these
guidelines. All marketing materials and other publications or press releases
referencing the Citrix products or the ICA protocol shall be submitted to
Citrix for its prior approval. Approved marketing materials may be reused
without Citrix' prior approval if the use of the Citrix trademarks is
exactly as previously approved and if the context and contents of the new
materials are substantially similar to the approved materials.
The Citrix and WinFrame names, logos and trademarks can only be used by
authorized OEMs and Resellers in connection with the sales and marketing of
Citrix Products.
The Citrix name and Citrix logos may not be used to promote other
Resellers' products. Nor may the Citrix name and logo be used for general
dealer promotions not specifically related to Citrix Products.
If any of the Trademarks are to be used in conjunction with another
trademark on or in relation to the Citrix Product, then Citrix' ▇▇▇▇ shall
be presented equally legibly, equally prominently, and of equal size to the
other, but nevertheless separated from the other so that each appears to be
a ▇▇▇▇ in its own right, distinct from the other ▇▇▇▇.
2. TRADEMARK AND LOGO USAGE
Advertisements, collateral materials, direct mail materials, and other
printed materials (with exception of Telechips signage) should include the
credit line:
Citrix WinView and ICA are registered trademarks of and WinFrame is a
trademark of Citrix Systems, Inc.
3. DESIGN STANDARDS
The following is a general outline of design rules governing the use of the
company name, Citrix Product's names and logos:
In text usage, the first time the company name is used it should be
"Citrix Systems, Inc.", thereafter "Citrix" is acceptable.
Citrix Systems, Citrix WinView and other Citrix Products should have
"Citrix" in upper and lower case, with "WinView" spelled as one word
with the "W" and "V" capitalized and WinFrame spelled as one word with
the "W" and "F" capitalized. Additional proper names will be covered at
the time of their use.
Artwork for the Citrix corporate logo and product logos is available and
will be supplied to Telechips. The corporate logo must be of the same
design, color and other details or should be exact copies of those used
by Citrix. The corporate logo should appear as one
21
22
Citrix Confidential
color (preferably black) on two-color materials, or on full color
artwork as PMS 403 for the body of the logo, and PMS Warm Red for the
dots. Color samples are available from Citrix. Citrix Product logos
should be one color, in Black or in the text color of document.
22