EXHIBIT 10.24
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote
omissions.
AMENDMENT I
This Amendment and attachments hereto (the "Amendment"),
effective as of September 30, 1998, is entered into upon the
latest date following the signatures hereto by and between
Spyglass, Inc., ("Spyglass") and Motorola, Inc. ("Licensee") and
is attached to and incorporated in its entirety into that certain
Source License and Distribution Agreement by and between Spyglass
and Licensee dated June 25, 1998 (the "Agreement").
Notwithstanding anything to the contrary contained in the
Agreement, and in consideration of the mutual promises, covenants
and conditions contained in the Agreement and contained herein,
the parties hereby covenant and agree to the foregoing and as
follows:
1. Capitalized terms herein will have the meanings identified in
the Agreement unless otherwise defined in this Amendment. For
purposes of this Amendment, the existing definition of "Licensed
Software" in Section 1.5 shall be deleted and replaced in its
entirety with the following new definition:
"1.5 "Licensed Software" means the standard non-customized
code base of the software described in Exhibit A attached to the
Agreement and Exhibit A-1 attached hereto, and any derivative
works thereof."
2. Section 2.2 Distribution License shall be amended to add the
following new subsections (c), (d), and (e) respectively:
"2.2(c). Subject to the terms and conditions contained
herein, Spyglass grants the Licensee, and the Licensee accepts, a
non-exclusive, non-transferable, perpetual, irrevocable (subject
to Section 7.2) right and license, under all Intellectual
Property rights of Spyglass, in the Territory to copy and
distribute copies of the Source Code Form of the *** of the
Device Mosaic segment of the Licensed Software only, and only as
incorporated into or bundled with the Licensee Products and
subject to the requirements set forth in Section 2.4 below, to
Resellers and Sublicensees solely to allow Licensee to grant such
Resellers and Sublicensees the right to modify *** and distribute
such modifications in Object Code Form only and only as bundled
or incorporated with the Licensee Products to End Users.
Licensee is granted no right to further distribute the Licensed
Software, or a portion thereof, in Source Code Form. Licensee,
its Resellers and Sublicensees are granted no right hereunder to
distribute the Licensed Software, or a portion thereof, on a
standalone basis.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
2.2(d). Subject to Licensee and an Escrow Agent entering
into the Escrow Agreement (attached hereto and made part of the
Agreement as Exhibit F) or a substantially similar Escrow
Agreement, Licensee shall have the right to place the Licensed
Software in Source Code Form (and the relating documentation),
excluding any third party software, in an escrow account. Such
escrow account shall be maintained and controlled at Licensee's
sole expense and direction, and Spyglass shall have no obligation
to make deposits into the escrow account, including the deposits
of any Updates, Upgrades, modifications or enhancements to the
Licensed Software. Licensee shall, in accordance with the
requirements of the Licensee Report set forth in Section 5.4 of
the Agreement, report to Spyglass each Reseller and Sublicensee
named as a beneficiary in such escrow agreement. The Licensed
Software may be released from escrow for the benefit of
Licensee's Resellers and/or Sublicensees only in the event of:
(1) a receiver, trustee in bankruptcy or similar officer is
appointed to take charge of all of Licensee's property; (2)
Licensee files a voluntary petition under federal bankruptcy laws
or similar state statues or such petition is filed against
Licensee and is not dismissed within sixty (60) days; or (3) a
change of control of
Licensee's *** (or its successor organization within Licensee's
business organization) occurs when a competitor of a reported
beneficiary (either a Reseller or Sublicensee) acquires a
controlling interest in such Licensee's Group and such
reported beneficiary's/(ies')
support or interests are adversely affected due to such change
in control as demonstrated by specific facts; provided that: (i)
the Licensed Software in Source Code Form is released from escrow
for the sole purpose of allowing those Resellers and/or
Sublicensees who have been reported to Spyglass as beneficiaries
the ability to support the Licensee Products for their then-
current customers/End Users, (ii) the Licensed Software in Source
Code Form is only released from escrow when the Licensee Products
in Source Code Form are also released, and (iii) Licensee
notifies Spyglass as soon as Licensee becomes aware of an event
that could result in the release of the Licensed Software from
escrow.
2.2(e). Spyglass agrees to permit Licensee to provide any
Reseller or Sublicensee with any of the development documentation
of Spyglass as identified in Exhibit G for the purpose of
permitting such Reseller or Sublicensee to use the development
documentation to develop Reseller or Sublicensee application
products for use with the Licensee Products, provided a written
confidentiality agreement is executed between Licensee and each
Reseller or Sublicensee to keep the confidential portions of the
development documentation of Spyglass confidential for a period
of at least three (3) years in accordance with terms otherwise at
least as protective as those of Section 8 of the Agreement.
Spyglass agrees to reasonably consider adding further Spyglass
documentation to Exhibit G as appropriate to assist with the
creation of such Reseller or Sublicensee application products."
3. Section 5.3 Additional License Fees shall be deleted and
replaced in its entirety with the following new Section 5.3
Additional License Fees:
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
"5.3 Additional License Fees: Upon Licensee exhausting the
number of copies of the Licensed Software acquired in the Initial
Purchase Commitments in Exhibits B and B-1, Licensee shall pay
Spyglass on a calendar quarterly basis, concurrent with the
Licensee Report set forth in Section 5.4, the following:
(i) a Per Copy Fee equivalent to the Per Copy Fee
which, in Exhibit B, corresponds to the accumulated number
of copies of the Licensed Software, and derivative works
thereof, distributed by Licensee, its Resellers and
Sublicensees, and
(ii) a Per Copy Fee equivalent to the Per Copy Fee
which, in Exhibit B-1, corresponds to the accumulated number
of copies of the Licensed Software, and derivative works
thereof, distributed by Licensee, its Resellers and
Sublicensees.
The above calculations are based upon a one-to-one ratio of
distribution of Licensed Software identified in Exhibit A to the
distribution of the Licensed Software identified in Exhibit A-1.
4. Section 5.4 Licensee Report shall be amended to add the
following new subsection (iv):
"(iv) and the names and addresses of each Reseller and
Sublicensee who has been named as a beneficiary by Licensee in an
escrow agreement providing such Reseller and/or Sublicensee
access to the Licensed Software in Source Code Form."
5. The last sentence of Exhibit B, Section A (2), is hereby
deleted in its entirety.
6. Exhibits A and B shall be amended to add, as attachments, the
Exhibits A-1 and B-1, respectively, attached hereto.
7. The Additional Deliverable A identified in the attachment,
Exhibit A-1, shall be considered Spyglass' Confidential
Information whether or not it is marked as "confidential" in
writing.
8. The Additional Deliverable A identified in the attachment,
Exhibit A-1, shall be included under the Exhibit C, Technical
Support Services, at *** Technical Support Services Fees for the
period commencing on the Amendment Date through December 15,
1998, at which time, Licensee may elect for the parties to
negotiate in good faith an amendment to the Technical Support
Services covering the fee for such services for the Additional
Deliverable A or Spyglass shall cease providing such support.
9. Exhibit C, Technical Support Services, Section 1.1, in
subsection (iv), the word "Hellcat" is hereby deleted and
replaced with the word "Blackbird" (or subsequent commercial
brand name therefor).
10. Exhibit C, Technical Support Services, Section 2.1,
subsection (d), the word "Hellcat" is hereby deleted and replaced
with the word "Blackbird" (or subsequent commercial brand name
therefor).
11. Exhibit D, Licensee Product, is hereby amended to delete and
replace in its entirety the existing Licensee Product description
with the following new Licensee Product description:
"Licensee Product: Any Motorola, Inc. ***. Products that
represent substantial deviations from this common architecture
and its future generation enhancements shall be considered
additional Licensee Products."
12. Unless otherwise modified or amended herein, all other terms
and conditions of the Agreement and the Exhibits thereto, shall
apply to the Additional Deliverable A as "Licensed Software" in
the same manner they apply to the Licensed Software identified in
the Agreement; and the parties' rights and obligations thereunder
remain in full force and effect.
13. This Amendment shall become a part of the Agreement and
shall be read together with the Agreement as a single document.
To the extent that there are any conflicts between the terms and
conditions of the Agreement and the terms and conditions of this
Amendment, the terms and conditions of this Amendment shall
control.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by the duly authorized representatives. By executing
below, the parties agree to amend the Agreement as noted herein.
SPYGLASS, INC. MOTOROLA, INC.
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Executive V.P. CFO Title: VP & Gen Mgr,
IES
Date: 9/30/98 Date: 9/30/98
EXHIBIT A-1
(Attachment to Exhibit A)
DELIVERABLES
This Exhibit A-1 is incorporated in its entirety as part of the
Agreement.
Additional Deliverable:
A. Spyglass Device Mail Version 1.0 in Source Code Form for the
VxWorks operating environment
Delivery Dates:
On or before September 30, 1998.
Licensed Spyglass Trademarks:
Spyglass Trademarks:
Spyglass[Registered Trademark] Device Mail
The Additional Deliverable A is hereby added to the Agreement and
included in the definition of "Licensed Software".
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote
omissions.
EXHIBIT B-1
LICENSE FEE SCHEDULE
(for Device Mail)
This Exhibit B-1 is incorporated in its entirety as part of the
Agreement.
A) Spyglass Device Mail
(1) Technology Access Fee - Device Mail: ***
(2) Initial Purchase Commitment - Device Mail: ***,
includes *** Copies as follows:
# of Copies
***/Per Copy = ***
Initial Purchase Commitment: ***
Due ***
(3) Per Copy Fee for Additional License Fees for Device Mail
# of Copies Per Copy Fee Payment
*** ***
(4) Technology Access Fees, Initial Purchase Commitment and
Per Copy Fees are due on a Per Licensee Product basis. Products
that represent substantial deviations from the common
architecture of the Licensee Product identified in Exhibit D
shall be considered additional Licensee Products and are subject
to the then-current Spyglass pricing for each additional Licensee
Product added to Exhibit D.
Exhibit F
Preferred Escrow Agreement Introduction
DSI's Preferred arrangement offers the flexibility of a
modifiable contract combined with premium protection for both the
depositor and the beneficiary. This advanced escrow can be
precisely tailored to accommodate various circumstances.
In addition to our Technology Protection services, DSI's
Preferred customers benefit from these unique features:
_ Technical Verification options
_ Tailored release conditions
_ Written notification detailing the contents of the deposit
and each update
_ Semi-annual account histories listing all deposit activity
For additional benefits, you can choose DSI's Comprehensive
Preferred addendum and receive these additional features:
_ Recurring Level I Technical Verification
_ Continual DeposiTrack Service
_ Unlimited updates/replacements and one additional storage
unit
Because we recognize that various situations require different
levels of service and protection, DSI offers our customers a wide
array of options. Our specialized agreements include SAFE,
FlexSAFE, Preferred and Comprehensive Preferred. Master
agreements are also available to simplify and standardize your
escrow arrangements.
Please consult your DSI representative to select an agreement and
develop an escrow program that meets your individual needs.
PREFERRED ESCROW AGREEMENT
Account Number ______________________
This Agreement is effective __________________, 19_____ among
Data Securities International, Inc. ("DSI"),
______________________________________ ("Depositor") and
______________________________________ ("Preferred Beneficiary"),
who collectively may be referred to in this Agreement as "the
parties."
A. Depositor and Preferred Beneficiary have entered or will
enter into a license agreement, development agreement, and/or
other agreement regarding certain proprietary technology of
Depositor (referred to in this Agreement as "the license
agreement").
B. Depositor desires to avoid disclosure of its proprietary
technology except under certain limited circumstances.
C. The availability of the proprietary technology of Depositor
is critical to Preferred Beneficiary in the conduct of its
business and, therefore, Preferred Beneficiary needs access to
the proprietary technology under certain limited circumstances.
D. Depositor and Preferred Beneficiary desire to establish an
escrow with DSI to provide for the retention, administration and
controlled access of the proprietary technology materials of
Depositor.
E. The parties desire this Agreement to be supplementary to the
license agreement pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ [Bankruptcy] Code,
Section 365(n).
ARTICLE 1 -- DEPOSITS
1.1 Obligation to Make Deposit. Upon the signing of this
Agreement by the parties, Depositor shall deliver to DSI the
proprietary information and other materials ("deposit materials")
required to be deposited by the license agreement or, if the
license agreement does not identify the materials to be deposited
with DSI, then such materials will be identified on an Exhibit A.
If Exhibit A is applicable, it is to be prepared and signed by
Depositor and Preferred Beneficiary. DSI shall have no
obligation with respect to the preparation, signing or delivery
of Exhibit A.
1.2 Identification of Tangible Media. Prior to the delivery of
the deposit materials to DSI, Depositor shall conspicuously label
for identification each document, magnetic tape, disk, or other
tangible media upon which the deposit materials are written or
stored. Additionally, Depositor shall complete Exhibit B to this
Agreement by listing each such tangible media by the item label
description, the type of media and the quantity. The Exhibit B
must be signed by Depositor and delivered to DSI with the deposit
materials. Unless and until Depositor makes the initial deposit
with DSI, DSI shall have no obligation with respect to this
Agreement, except the obligation to notify the parties regarding
the status of the deposit account as required in Section 2.2
below.
1.3 Deposit Inspection. When DSI receives the deposit materials
and the Exhibit B, DSI will conduct a deposit inspection by
visually matching the labeling of the tangible media containing
the deposit materials to the item descriptions and quantity
listed on the Exhibit B. In addition to the deposit inspection,
Preferred Beneficiary may elect to cause a verification of the
deposit materials in accordance with Section 1.6 below.
1.4 Acceptance of Deposit. At completion of the deposit
inspection, if DSI determines that the labeling of the tangible
media matches the item descriptions and quantity on Exhibit B,
DSI will date and sign the Exhibit B and mail a copy thereof to
Depositor and Preferred Beneficiary. If DSI determines that the
labeling does not match the item descriptions or quantity on the
Exhibit B, DSI will (a) note the discrepancies in writing on the
Exhibit B; (b) date and sign the Exhibit B with the exceptions
noted; and (c) provide a copy of the Exhibit B to Depositor and
Preferred Beneficiary. DSI's acceptance of the deposit occurs
upon the signing of the Exhibit B by DSI. Delivery of the signed
Exhibit B to Preferred Beneficiary is Preferred Beneficiary's
notice that the deposit materials have been received and accepted
by DSI.
1.5 Depositor's Representations. Depositor represents as
follows:
a. Depositor lawfully possesses all of the deposit
materials deposited with DSI;
b. With respect to all of the deposit materials, Depositor
has the right and authority to grant to DSI and Preferred
Beneficiary the rights as provided in this Agreement;
c. The deposit materials are not subject to any lien or
other encumbrance;
d. The deposit materials consist of the proprietary
information and other materials identified either in the license
agreement or Exhibit A, as the case may be; and
e. The deposit materials are readable and useable in their
current form or, if the deposit materials are
encrypted, the decryption tools and decryption keys
have also been deposited.
1.6 Verification. Preferred Beneficiary shall have the right,
at Preferred Beneficiary's expense, to cause a verification of
any deposit materials. A verification determines, in different
levels of detail, the accuracy, completeness, sufficiency and
quality of the deposit materials. If a verification is elected
after the deposit materials have been delivered to DSI, then only
DSI, or at DSI's election an independent person or company
selected and supervised by DSI, may perform the verification.
1.7 Deposit Updates. Unless otherwise provided by the license
agreement, Depositor shall update the deposit materials within 60
days of each release of a new version of the product which is
subject to the license agreement. Such updates will be added to
the existing deposit. All deposit updates shall be listed on a
new Exhibit B and the new Exhibit B shall be signed by Depositor.
Each Exhibit B will be held and maintained separately within the
escrow account. An independent record will be created which will
document the activity for each Exhibit B. The processing of all
deposit updates shall be in accordance with Sections 1.2 through
1.6 above. All references in this Agreement to the deposit
materials shall include the initial deposit materials and any
updates.
1.8 Removal of Deposit Materials. The deposit materials may be
removed and/or exchanged only on written instructions signed by
Depositor and Preferred Beneficiary, or as otherwise provided in
this Agreement.
ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING
2.1 Confidentiality. DSI shall maintain the deposit materials
in a secure, environmentally safe, locked facility which is
accessible only to authorized representatives of DSI. DSI shall
have the obligation to reasonably protect the confidentiality of
the deposit materials. Except as provided in this Agreement, DSI
shall not disclose, transfer, make available, or use the deposit
materials. DSI shall not disclose the content of this Agreement
to any third party. If DSI receives a subpoena or other order of
a court or other judicial tribunal pertaining to the disclosure
or release of the deposit materials, DSI will immediately notify
the parties to this Agreement. It shall be the responsibility of
Depositor and/or Preferred Beneficiary to challenge any such
order; provided, however, that DSI does not waive its rights to
present its position with respect to any such order. DSI will
not be required to disobey any court or other judicial tribunal
order. (See Section 7.5 below for notices of requested orders.)
2.2 Status Reports. DSI will issue to Depositor and Preferred
Beneficiary a report profiling the account history at least semi-
annually. DSI may provide copies of the account history
pertaining to this Agreement upon the request of any party to
this Agreement.
2.3 Audit Rights. During the term of this Agreement, Depositor
and Preferred Beneficiary shall each have the right to inspect
the written records of DSI pertaining to this Agreement. Any
inspection shall be held during normal business hours and
following reasonable prior notice.
ARTICLE 3 -- GRANT OF RIGHTS TO DSI
3.1 Title to Media. Depositor hereby transfers to DSI the title
to the media upon which the proprietary information and materials
are written or stored. However, this transfer does not include
the ownership of the proprietary information and materials
contained on the media such as any copyright, trade secret,
patent or other intellectual property rights.
3.2 Right to Make Copies. DSI shall have the right to make
copies of the deposit materials as reasonably necessary to
perform this Agreement. DSI shall copy all copyright,
nondisclosure, and other proprietary notices and titles contained
on the deposit materials onto any copies made by DSI. With all
deposit materials submitted to DSI, Depositor shall provide any
and all instructions as may be necessary to duplicate the deposit
materials including but not limited to the hardware and/or
software needed.
3.3 Right to Transfer Upon Release. Depositor hereby grants to
DSI the right to transfer the deposit materials to Preferred
Beneficiary upon any release of the deposit materials for use by
Preferred Beneficiary in accordance with Section 4.5. Except
upon such a release or as otherwise provided in this Agreement,
DSI shall not transfer the deposit materials.
ARTICLE 4 -- RELEASE OF DEPOSIT
4.1 Release Conditions. As used in this Agreement, "Release
Conditions" shall mean the following:
a. A change of control of Depositor's Entertainment &
Imaging Group (or its successor organization within Depositor's
business organization). A change of control occurs when a
competitor of a Preferred Beneficiary (either a Reseller or
Sublicensee who has been reported to Spyglass) acquires a
controlling interest in such Depositor's Group and such reported
beneficiary's/(ies') support or interests are adversely affected
due to such change in control as demonstrated by specific facts;
or
b. Depositor's failure to continue to do business in the
ordinary course.
4.2 Filing For Release. If Preferred Beneficiary believes in
good faith that a Release Condition has occurred, Preferred
Beneficiary may provide to DSI written notice of the occurrence
of the Release Condition and a request for the release of the
deposit materials. Upon receipt of such notice, DSI shall
provide a copy of the notice to Depositor, by certified mail,
return receipt requested, or by commercial express mail.
4.3 Contrary Instructions. From the date DSI mails the notice
requesting release of the deposit materials, Depositor shall have
ten business days to deliver to DSI Contrary Instructions.
"Contrary Instructions" shall mean the written representation by
Depositor that a Release Condition has not occurred or has been
cured. Upon receipt of Contrary Instructions, DSI shall send a
copy to Preferred Beneficiary by certified mail, return receipt
requested, or by commercial express mail. Additionally, DSI
shall notify both Depositor and Preferred Beneficiary that there
is a dispute to be resolved pursuant to the Dispute Resolution
section (Section 7.3) of this Agreement. Subject to Section 5.2,
DSI will continue to store the deposit materials without release
pending (a) joint instructions from Depositor and Preferred
Beneficiary; (b) resolution pursuant to the Dispute Resolution
provisions; or (c) order of a court.
4.4 Release of Deposit. If DSI does not receive Contrary
Instructions from the Depositor, DSI is authorized to release the
deposit materials to the Preferred Beneficiary or, if more than
one beneficiary is registered to the deposit, to release a copy
of the deposit materials to the Preferred Beneficiary. However,
DSI is entitled to receive any fees due DSI before making the
release. This Agreement will terminate upon the release of the
deposit materials held by DSI.
4.5 Right to Use Following Release. Unless otherwise provided
in the license agreement, upon release of the deposit materials
in accordance with this Article 4, Preferred Beneficiary shall
have the right to use the deposit materials for the sole purpose
of continuing the benefits afforded to Preferred Beneficiary by
the license agreement. Preferred Beneficiary shall be obligated
to maintain the confidentiality of the released deposit
materials.
ARTICLE 5 -- TERM AND TERMINATION
5.1 Term of Agreement. The initial term of this Agreement is
for a period of one year. Thereafter, this Agreement shall
automatically renew from year-to-year unless (a) Depositor and
Preferred Beneficiary jointly instruct DSI in writing that the
Agreement is terminated; or (b) the Agreement is terminated by
DSI for nonpayment in accordance with Section 5.2. If the
deposit materials are subject to another escrow agreement with
DSI, DSI reserves the right, after the initial one year term, to
adjust the anniversary date of this Agreement to match the then
prevailing anniversary date of such other escrow arrangements.
5.2 Termination for Nonpayment. In the event of the nonpayment
of fees owed to DSI, DSI shall provide written notice of
delinquency to all parties to this Agreement. Any party to this
Agreement shall have the right to make the payment to DSI to cure
the default. If the past due payment is not received in full by
DSI within one month of the date of such notice, then DSI shall
have the right to terminate this Agreement at any time thereafter
by sending written notice of termination to all parties. DSI
shall have no obligation to take any action under this Agreement
so long as any payment due to DSI remains unpaid.
5.3 Disposition of Deposit Materials Upon Termination. Upon
termination of this Agreement by joint instruction of Depositor
and Preferred Beneficiary, DSI shall destroy, return, or
otherwise deliver the deposit materials in accordance with
Depositor's instructions. Upon termination for nonpayment, DSI
may, at its sole discretion, destroy the deposit materials or
return them to Depositor. DSI shall have no obligation to return
or destroy the deposit materials if the deposit materials are
subject to another escrow agreement with DSI.
5.4 Survival of Terms Following Termination. Upon termination
of this Agreement, the following provisions of this Agreement
shall survive:
a. Depositor's Representations (Section 1.5);
b. The obligations of confidentiality with respect to the
deposit materials;
c. The rights granted in the sections entitled Right to
Transfer Upon Release (Section 3.3) and Right to Use
Following Release (Section 4.5), if a release of the
deposit materials has occurred prior to termination;
d. The obligation to pay DSI any fees and expenses due;
e. The provisions of Article 7; and
f. Any provisions in this Agreement which specifically
state they survive the termination or expiration of
this Agreement.
ARTICLE 6 -- DSI'S FEES
6.1 Fee Schedule. DSI is entitled to be paid its corporate fees
which have been previously negotiated with Depositor.
6.2 Payment Terms. DSI shall not be required to perform any
service unless the payment for such service and any outstanding
balances owed to DSI are paid in full. All other fees are due
upon receipt of invoice. If invoiced fees are not paid, DSI may
terminate this Agreement in accordance with Section 5.2. Late
fees on past due amounts shall accrue at the rate of one and one-
half percent per month (18% per annum) from the date of the
invoice.
ARTICLE 7 -- LIABILITY AND DISPUTES
7.1 Right to Rely on Instructions. DSI may act in reliance upon
any instruction, instrument, or signature reasonably believed by
DSI to be genuine. DSI may assume that any employee of a party
to this Agreement who gives any written notice, request, or
instruction has the authority to do so. DSI shall not be
responsible for failure to act as a result of causes beyond the
reasonable control of DSI.
7.2 Indemnification. DSI shall be responsible to perform its
obligations under this Agreement and to act in a reasonable and
prudent manner with regard to this escrow arrangement. Provided
DSI has acted in the manner stated in the preceding sentence,
Depositor and Preferred Beneficiary each agree to indemnify,
defend and hold harmless DSI from any and all claims, actions,
damages, arbitration fees and expenses, costs, attorney's fees
and other liabilities incurred by DSI relating in any way to this
escrow arrangement.
7.3 Dispute Resolution. Any dispute relating to or arising from
this Agreement shall be resolved by arbitration under the
Commercial Rules of the American Arbitration Association. Unless
otherwise agreed by Depositor and Preferred Beneficiary,
arbitration will take place in San Diego, California, U.S.A. Any
court having jurisdiction over the matter may enter judgment on
the award of the arbitrator(s). Service of a petition to confirm
the arbitration award may be made by First Class mail or by
commercial express mail, to the attorney for the party or, if
unrepresented, to the party at the last known business address.
7.4 Controlling Law. This Agreement is to be governed and
construed in accordance with the laws of the State of California,
without regard to its conflict of law provisions.
7.5 Notice of Requested Order. If any party intends to obtain
an order from the arbitrator or any court of competent
jurisdiction which may direct DSI to take, or refrain from taking
any action, that party shall:
a. Give DSI at least two business days' prior notice of
the hearing;
b. Include in any such order that, as a precondition to
DSI's obligation, DSI be paid in full for any past due fees and
be paid for the reasonable value of the services to be rendered
pursuant to such order; and
c. Ensure that DSI not be required to deliver the original
(as opposed to a copy) of the deposit materials if DSI
may need to retain the original in its possession to
fulfill any of its other duties.
ARTICLE 8 -- GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement, which includes the
Exhibits described herein, embodies the entire understanding
among the parties with respect to its subject matter and
supersedes all previous communications, representations or
understandings, either oral or written. No amendment or
modification of this Agreement shall be valid or binding unless
signed by all the parties hereto, except that Exhibit A need not
be signed by DSI, Exhibit B need not be signed by Preferred
Beneficiary and Exhibit C need not be signed.
8.2 Notices. All notices, invoices, payments, deposits and
other documents and communications shall be given to the parties
at the addresses specified in the attached Exhibit C. It shall
be the responsibility of the parties to notify each other as
provided in this Section in the event of a change of address. The
parties shall have the right to rely on the last known address of
the other parties. Unless otherwise provided in this Agreement,
all documents and communications may be delivered by First Class
mail.
8.3 Severability. In the event any provision of this Agreement
is found to be invalid, voidable or unenforceable, the parties
agree that unless it materially affects the entire intent and
purpose of this Agreement, such invalidity, voidability or
unenforceability shall affect neither the validity of this
Agreement nor the remaining provisions herein, and the provision
in question shall be deemed to be replaced with a valid and
enforceable provision most closely reflecting the intent and
purpose of the original provision.
8.4 Successors. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the
parties. However, DSI shall have no obligation in performing
this Agreement to recognize any successor or assign of Depositor
or Preferred Beneficiary unless DSI receives clear, authoritative
and conclusive written evidence of the change of parties.
_______________________________ _______________________________
Depositor Preferred Beneficiary
By: By:
_______________________________ _______________________________
Name:__________________________ Name:__________________________
Title:_________________________ Title:_________________________
Date:__________________________ Date:__________________________
Data Securities International, Inc.
By:________________________________
Name:______________________________
Title:_____________________________
Date:______________________________
EXHIBIT A
MATERIALS TO BE DEPOSITED
Account Number ______________________
Depositor represents to Preferred Beneficiary that deposit
materials delivered to DSI shall consist of the following:
_______________________________ _______________________________
_____ _____
Depositor Preferred Beneficiary
By: By:
_______________________________ _______________________________
Name:__________________________ Name:__________________________
_____ _____
Title:_________________________ Title:_________________________
_______ _______
Date:__________________________ Date:__________________________
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name __________________________________________
Account Number __________________________________________________
PRODUCT DESCRIPTION:
Product Name_______________________Version_______________________
Operating System_________________________________________________
_________________________________________________________________
Hardware Platform________________________________________________
_________________________________________________________________
DEPOSIT COPYING INFORMATION:
Hardware required:_______________________________________________
_________________________________________________________________
Software required:_______________________________________________
_________________________________________________________________
DEPOSIT MATERIAL DESCRIPTION:
Qty Media Type & Size Label Description of Each
Separate Item
(excluding documentation)
_____ Disk 3.5" or ____
_____ DAT tape ____mm
_____ CD-ROM
_____ Data cartridge tape ____
_____ TK 70 or ____ tape
_____ Magnetic tape ____
_____ Documentation
_____ Other ______________________
I certify for Depositor that the above described__________DSI
has inspected and accepted the above
deposit materials have been transmitted to DSI:
materials (any exceptions are noted
above):
Signature__________________ Signature_____________________
Print Name_________________ Print Name____________________
Date_______________________ Date Accepted_________________
Exhibit B#____________________
Send materials to: DSI, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. #▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇
EXHIBIT C
DESIGNATED CONTACT
Account Number ______________________
Notices, deposit material
returns and Invoices to Depositor should be
communications to Depositor addressed to:
should be addressed to:
Company Name:
Address:
Designated Contact: Contact:
Telephone:
Facsimile:
Notices and communications to Invoices to Preferred
Preferred Beneficiary should be Beneficiary
addressed to: should be addressed to:
Company Name:
Address:
Designated Contact: Contact:
Telephone:
Facsimile:
Requests from Depositor or Preferred Beneficiary to change the
designated contact should be given in writing by the designated
contact or an authorized employee of Depositor or Preferred
Beneficiary.
Contracts, deposit materials Invoice inquiries and fee
and notices to remittances DSI should be addressed to:
DSI DSI
Contract Administration Accounts Receivable
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Date:__________________________
_______
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote
omissions.
Exhibit G
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