EXHIBIT 10.7.3
SECOND ADDENDUM TO
JOINT DEVELOPMENT AND LICENSE AGREEMENT
THIS SECOND ADDENDUM TO JOINT DEVELOPMENT AND LICENSE AGREEMENT is made as of
the _____ day of February, 1996 (the "Effective Date"), among Nintendo Co., Ltd.
("NCL"), Nintendo of America Inc. ("NOA") (NCL and NOA are referred to
collectively as "Company"), Silicon Graphics, Inc., and MIPS Technologies, Inc.
(collectively referred to as "SGI").
BACKGROUND
Company and SGI are parties to a "Joint Development and License Agreement",
dated August 20, 1993, as supplemented by the "First Addendum to Joint
Development and License Agreement", dated February 5, 1994 (collectively, the
"Agreement"). Company and SGI have agreed to enter into this Second Addendum as
it relates to the joint ownership of certain patent rights, as described herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions.
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(a) Unless otherwise defined in this Second Addendum, all capitalized words
used in this Second Addendum shall have the meanings set forth in the Agreement.
(b) Section 1.8. "COMPANY PRODUCTS" is hereby revised to add the phrase
"and/or Foreground Technology" immediately after the term "Developed
Technology."
(c) Section 1.16, "FILING" is hereby revised to add the phrase "or
Foreground Technology" immediately after the term "Developed Technology."
(d) The last sentence of Section 1.23, "TECHNOLOGY", is hereby revised to
read as follows:
Technology is either Background Technology, Developed Technology or
Foreground Technology.
(e) A new Section 1.26 is hereby added to the Agreement as follows:
1.26 "FOREGROUND TECHNOLOGY" means those inventions listed in
Schedule C, excluding Invention 2, that are covered by a claim of a
Patent(s) that issues directed to the application of elements of the
Background Technology to Company Products (but the claim coverage may be
broader than Company Products), which Patent(s) are based on Filings that
the parties mutually agree on in writing. The parties acknowledge that the
inclusion of Background Technology, Developed Technology or Company
Technology in a Foreground Technology Patent claim or disclosure shall not
be interpreted as converting such Background Technology, Developed
Technology or Company Technology into Foreground Technology.
(f) A new Section 1.27 is hereby added to the Agreement as follows:
1.27 "COPROCESSOR COMMAND SET" means (a) the binary instruction
formats for controlling or commanding the signal processor portion of
the Coprocessor; and (b) the binary command formats for controlling or
commanding the display processor portion of the Coprocessor.
(g) A new Section 1.28 is hereby added to the Agreement as follows:
1.28 "MICROCODE/LIBRARIES" means the computer programs developed
and delivered by SGI to Company pursuant to this Agreement, which
program(s) are to be incorporated into each copy of the Packaged
Software and executed by the Coprocessor, and run-time modules of the
graphics libraries and audio libraries and the real-time operating
system developed and delivered by SGI to Company under this Agreement.
(h) A new Section 1.29 is hereby added to the Agreement as follows:
1.29 "PATENT" means letters patent issued under laws of the
United States, reissue patents, divisional patents, reexamination
patents, continuations, continuations-in-part and the foreign
counterparts of any of the foregoing.
(i) A new Section 1.30 is hereby added to the Agreement as follows:
1.30 "CROSS LICENSE" means an agreement between either party to
this Agreement and a third party, other than a Licensee, effective
prior to the Effective Date of this Second Addendum. pursuant to which
such party and the third party grant each other licenses to patents
developed or acquired during the term of such agreement, which licenses
are granted in settlement of infringement claims.
(j) A new Section 1.31 is hereby added to the Agreement as follows:
1.31 "COPROCESSOR MICROINSTRUCTION SET" means the binary
instruction formats executable by the signal processor portion of the
Coprocessor. Binary versions of the Microcode/Libraries are encoded
using the Coprocessor Microinstruction Set.
(k) A new Section 1.32 is hereby added to the Agreement as follows:
1.32 "COPROCESSOR" means the Application Specific Integrated
Circuit developed by SGI pursuant to Schedule A for incorporation in
the Consumer Hardware.
(l) A new Section 1.33 is hereby added to the Agreement as follows:
1.33 "DEVELOPER'S MANUAL" shall mean all versions of the
Nintendo 64 Developer's Manual, covering the topics listed in Schedule
D, developed and delivered by SGI to Company pursuant to this
Agreement.
(m) A new Section 1.34 is hereby added to the Agreement as follows:
1.34 "DEVELOPMENT ENVIRONMENT" shall mean all versions of the
software listed in Schedule D, developed and delivered by SGI to
Company pursuant to this Agreement for use by Packaged Software
developers.
(n) A new Section 1.35 is hereby added to the Agreement as follows:
1.35 "MASK WORK" means the layout of the Coprocessor.
2. A new Schedule C, as attached to this Second Addendum, is hereby added to
the Agreement.
3. A new Schedule D, as attached to this Second Addendum, is hereby added to
the Agreement.
4. The following is hereby added to the end of Section 6.2 of the Agreement:
SGI and Company shall use reasonable efforts to pursue and to prosecute
Filings applicable to the invention identified as "Invention 2" in Schedule
C, which the parties acknowledge is directed primarily to the protection of
Developed Technology. As provided in this Section 6.2, Company shall have
the administrative responsibility for such Filings.
5. Confidentiality. New Sections 8.9, 8.10 and 8.11, which the parties agree
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shall be effective as of the effective date of the Agreement, are hereby added
to the Agreement as follows:
8.9 CONFIDENTIALITY OF COMPANY TECHNOLOGY. SGI acknowledges
Company's representation that the Company Technology constitutes the
valuable proprietary and confidential information of Company, and
agrees to (i) retain in confidence the Company Technology, (ii)
restrict the use of and access to the Company Technology to its
employees to whom disclosure is necessary in connection with this
Agreement, and to authorized subcontractors, (iii) appropriately bind
each employee to whom any such disclosure is made to hold the Company
Technology in confidence, and (iv) not to sell, lease, transfer or
otherwise disclose the Company Technology to any third party except as
permitted by this Agreement, provided, however, that SGI may disclose
the Company Technology to its agents and consultants; if necessary or
appropriate in furtherance of SGI's development work under this
Agreement, under the terms and conditions of a signed, written
confidential disclosure agreement with terms and conditions which
prohibit disclosure to other parties, and which are otherwise at least
as restrictive as the terms of subsections (i)-(iii) of this Section
8.9. Without limiting the foregoing, SGI agrees that it will treat the
Company Technology with at least the same degree of care as it would
its own highly proprietary information.
8.10 CONFIDENTIALITY OF FOREGROUND TECHNOLOGY. SGI and Company
acknowledge that the Foreground Technology constitutes their valuable
and proprietary information. Except to the extent that any Foreground
Technology is described in any Patent, and except as otherwise agreed
in writing by the parties, each of SGI and Company agrees to (i)
retain in confidence the Foreground Technology, (ii) restrict the use
of and access to the Foreground Technology to its employees to whom
disclosure is necessary or permitted in connection with the exercise
of their rights in the Foreground Technology as provided in this
Agreement, and to authorized licensees and subcontractors, (iii)
appropriately bind each employee to whom any such disclosure is made
to hold the Foreground Technology in confidence, and (iv) not sell,
lease, transfer or otherwise disclose the Foreground Technology to any
third party except to licensees permitted by this Agreement and to its
agents or consultants under the terms and conditions of a signed,
written confidential disclosure agreement with terms and conditions
which prohibit disclosure to other parties, and which are otherwise at
least as restrictive as the terms of subsections (i)-(iii) of this
Section 8.10. Without limiting the foregoing, SGI agrees that it will
treat the Foreground Technology with at least the same degree of care
as it would its own highly proprietary information.
8.11 CONFIDENTIALITY OF DEVELOPED TECHNOLOGY. SGI and Company
acknowledge that the Developed Technology constitutes their valuable
and proprietary information. Except to the extent that any Developed
Technology is described in any Patent, and except as otherwise agreed
in writing by the parties, each of SGI and Company agrees to (i)
retain in confidence the Developed Technology, (ii) restrict the use
of and access to the Developed Technology to its employees to whom
disclosure is necessary or permitted in connection with the exercise
of their rights in the Developed Technology as provided in this
Agreement, and to authorized licensees and subcontractors, (iii)
appropriately bind each employee to whom any such disclosure is made
to hold the Developed Technology in confidence, and (iv) not sell,
lease, transfer or otherwise disclose the Developed Technology to any
third party except to licensees permitted by this Agreement and to its
agents or consultants under the terms and conditions of a
signed, written confidential disclosure agreement with terms and
conditions which prohibit disclosure to other parties, and which are
otherwise at least as restrictive as the terms of subsections (i)-
(iii) of this Section 8.11. Without limiting the foregoing, SGI agrees
that it will treat the Developed Technology with at least the same
degree of care as it would its own highly proprietary information.
6. The following is hereby added to the end of Section 9.3(b) of the
Agreement:
As of the effective date of this Second Addendum, SGI represents and
warrants to Company that, to the best of SGI's actual knowledge, SGI
has provided Company with a copy of (i) all patent applications filed
by SGI whose claims would be infringed by the unauthorized
manufacture, use or sale of the Consumer Hardware and/or the Packaged
Software incorporating those components of the Consumer Hardware
and/or the Packaged Software developed by SGI pursuant to this
Agreement; and (ii) all patent applications currently being prepared
by SGI whose claims, as currently drafted, would be infringed by the
unauthorized manufacture, use or sale of Consumer Hardware and/or the
Packaged Software incorporating those components of the Consumer
Hardware and/or the Packaged Software developed by SGI pursuant to
this Agreement. If, subsequent to the effective date of this Second
Addendum, SGI learns of any such patent application or if any such
claim is added to any such application, SGI shall promptly notify
Company.
7. Intellectual Property Indemnity. Sections 9.5 and 9.6 of the Agreement are
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hereby deleted in their entirety and replaced with the following:
9.5 SGI INTELLECTUAL PROPERTY INDEMNIFICATION. SGI will defend,
indemnify, and hold harmless Company and its Affiliates, directors,
officers, employees and agents against any claim, suit or proceeding
alleging that the Background Technology or SGI's contributions to the
Foreground Technology or the Developed Technology or use thereof
infringes or misappropriates any U.S. or Japanese copyright, mask
work, trade secret, patent or other intellectual property, proprietary
or contract rights of any third party and against any damages or
liability resulting from such claim, suit or proceeding, including,
without limitation, reasonable attorneys' fees and other costs and
expenses, provided that (i) Company gives SGI notice of the claim,
suit or proceeding promptly after commencement thereof (or, if later,
promptly after Company learns that such claim, suit or proceeding
relates to the Background Technology or SGI's contribution to the
Foreground Technology or the Developed Technology), (ii) SGI may not
settle any claim, suit or proceeding without the prior, written
consent of Company which consent shall not be unreasonably withheld,
provided that if Company refuses to consent to settlement acceptable
to the plaintiff(s) and proposed by SGI to Company, SGI's total
liability under this Section 9.5 shall be limited to the amount of the
proposed settlement and attorney's fees incurred as of
the date of SGI's request for Company's consent, and (iii) Company
provides SGI with all reasonable assistance requested by SGI in
connection with the defense and/or resolution of any such claim, suit
or proceeding, at SGI's expense. Notwithstanding the defense
obligation of SGI under this Section 9.5, Company shall have the
right, at its own expense, to appoint its own counsel to participate
in any claim, suit or proceeding, and SGI shall cooperate with Company
and such counsel. If there is a final determination of infringement or
misappropriation, SGI shall, at its option, use reasonable efforts to,
(i) replace or modify any component of the Background Technology or
SGI's contribution to the Foreground Technology or the Developed
Technology with a functionally equivalent noninfringing component that
conforms to the requirements of this Agreement, or (ii) obtain a
license for Company to use such Background Technology or SGI's
contribution to the Foreground Technology or the Developed Technology.
Notwithstanding the foregoing, SGI shall have no liability for a
claim, suit or proceeding to the extent based on (a) modification of
the Background Technology or SGI's contribution lo the Foreground
Technology or the Developed Technology by or for Company (other than
by SGI), or (b) Company's use of the Background Technology or SGI's
contribution to the Foreground Technology or the Developed Technology
with Accessories not supplied by SGI, or (c) Company's use of a
version of the Background Technology or SGI's contribution to the
Foreground Technology or the Developed Technology that was not at the
time of use the most recent version provided by SGI to Company. For
purposes of this Section 9.5, SGI's contributions to the Foreground
Technology or the Developed Technology shall include any technology
developed by SGI subcontractors. SGI'S LIABILITY UNDER THIS SECTION
9.5 SHALL IN NO EVENT EXCEED THE DEVELOPMENT FEES AND ROYALTIES PAID
BY COMPANY TO SGI UNDER THIS AGREEMENT.
9.6 COMPANY INTELLECTUAL PROPERTY INDEMNIFICATION. Company will
defend, indemnify, and hold harmless SGI and its Affiliates,
directors, officers, employees and agents against any claim, suit or
proceeding alleging that the Company contributions to the Foreground
Technology or the Developed Technology or use thereof infringes or
misappropriates any U.S. or Japanese copyright, mask work, trade
secret, patent or other intellectual property, proprietary or contract
rights of any third party and against any damages or liability
resulting from such claim, suit or proceeding, including, without
limitation, reasonable attorneys' fees and other costs and expenses,
provided that (i) SGI gives Company notice of the claim, suit or
proceeding promptly after commencement thereof (or, if later, promptly
after SGI learns that such claim, suit or proceeding relates to the
Company contributions to the Foreground Technology or the Developed
Technology), (ii) SGI gives Company sole authority to defend and/or
resolve any such claim, suit or proceeding or the portion thereof
relating to the Company contributions to the Foreground Technology or
the Developed
Technology, and (iii) SGI provides Company with all reasonable
assistance requested by Company in connection with the defense and/or
resolution of any such claim, suit or proceeding, at Company's
expense. Notwithstanding the defense obligation of Company under this
▇▇▇▇▇▇▇ ▇.▇, ▇▇▇ shall have the right, at its own expense, to appoint
its own counsel to participate in any claim, suit or proceeding, and
Company shall cooperate with SGI and such counsel. Notwithstanding the
foregoing, Company shall have no liability for a claim, suit or
proceeding to the extent based on (a) modification of the Company
contributions to the Foreground Technology or the Developed Technology
or (b) SGI's use of the Company contributions to the Foreground
Technology or the Developed Technology with equipment or components
not supplied by Company. For purposes of this Section 9.6, Company's
contributions to the Foreground Technology or the Developed Technology
shall include any technology developed by Company subcontractors.
COMPANY'S LIABILITY UNDER THIS SECTION 9.6 SHALL IN NO EVENT EXCEED
THE DEVELOPMENT FEES AND ROYALTIES PAID BY COMPANY TO SGI UNDER THIS
AGREEMENT.
8. Rights in Foreground Technology. A new Article 14.0 is hereby added to the
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Agreement as follows:
14.0 RIGHTS IN FOREGROUND TECHNOLOGY.
14.1 JOINT OWNERSHIP. Subject to the terms and conditions of
this Agreement, SGI and Company shall jointly own, in equal, undivided
shares (and each party hereby assigns to the other an equal, undivided
interest in) all right, title and interest in the Foreground
Technology (whether developed in whole or in part by SGI or by
Company), and title to all patents issued thereon shall be joint.
14.2 SGI RIGHTS IN FOREGROUND TECHNOLOGY. Subject to the
provisions of Section 6.4(a), which shall apply to the Foreground
Technology as well as the Background Technology, SGI shall have the
unrestricted right to use the Foreground Technology and to license any
third party to use the Foreground Technology without the consent of
Company, and without any duty to account to or to share proceeds with
Company, on account of such use or licensing of the Foreground
Technology. SGI's rights in the Foreground Technology shall survive
the expiration or termination of this Agreement and shall continue
until the expiration of the last Patent to expire that would be
infringed by the manufacture, use or sale of any Foreground
Technology.
14.3 COMPANY RIGHTS IN FOREGROUND TECHNOLOGY. Notwithstanding
Company's joint ownership rights in the Foreground Technology, Company
agrees that Company shall only have (a) the worldwide, nontransferable
(except to
Company's authorized subcontractors) right to use the Foreground
Technology only in combination with the Licensed Background Technology
and the Developed Technology for purposes of the design, manufacture,
use, sale and/or distribution of Company Products, and (b) the
worldwide right to grant nonexclusive licenses to Licensees to use the
Foreground Technology, only in combination with the Licensed
Background Technology and the Developed Technology, for purposes of
the design, manufacture, use, sale and/or distribution of Packaged
Software, Accessories, Coin Operated Software and/or Coin Operated
Hardware. All such licenses shall be in writing and shall be pursuant
to a form of agreement incorporating license grant and proprietary
rights provisions approved in writing by SGI, which approval shall not
be unreasonably withheld. Company shall have no obligation to obtain
the consent of SGI, or to account to or to share proceeds with SGI, on
account of such licensing or use of the Foreground Technology as
permitted in this Section 14.3. Company's rights in the Foreground
Technology shall commence as of the effective date of this Second
Addendum and shall survive the expiration of the term of this
Agreement and shall continue until the expiration of the last Patent
to expire that would be infringed by the unauthorized manufacture, use
or sale of any Foreground Technology. If the parties succeed in
obtaining Patents, which they would jointly own, and which would be
infringed by the manufacture, use or sale of any Foreground
Technology, SGI will not assert a claim against Company or a Licensee
for infringement of any such Patent on account of Company's or a
Licensee's manufacture, use or sale of such Foreground Technology in
products other than Company Products; provided, however, that SGI
reserves the right to assert a claim against Company for breach of
this Agreement if Company manufactures, uses, sells or licenses any
products other than Company Products which use Foreground Technology.
14.4 COOPERATION OF THE PARTIES IN FILINGS. The parties shall
use reasonable efforts to pursue and prosecute Filings applicable to
the Foreground Technology. All Filings applicable to the Foreground
Technology will be made at a time when appropriate during the
development or after completion of the Foreground Technology under the
names of both parties as joint owners. Company shall have the primary
administrative responsibility for Filings with respect to the
Foreground Technology, and the parties will cooperate with respect to
Filings on the Foreground Technology (including with respect to claim
amendments). Silicon Graphics will bear all fees and out-of-pocket
expenses payable to Sterne, Kessler, ▇▇▇▇▇▇▇▇▇ and ▇▇▇ in connection
therewith, and Company shall bear all other filing fees, attorneys'
fees and out-of-pocket expenses incurred in connection therewith. As
used herein, "administrative responsibility" means the preparation of
any documents required for a Filing, and the submission thereof to the
appropriate governmental entity. If SGI has not yet received a
proposed Filing from Company on an item of Foreground Technology,
and SGI believes that a Filing should be made with respect thereto,
SGI may submit a written request to Company that Company proceed with
the preparation of such Filing, provided, however, that Company may,
in its sole discretion, proceed or decline to proceed with the
preparation of such Filing. If Company declines to prepare and submit
a Filing on an item of Foreground Technology, SGI may proceed with the
preparation and submission of such Filing at SGI's expense. In either
case. a party preparing a Filing shall submit such Filing to the other
party for its review and approval prior to any submission to any
governmental entity. A Filing shall be deemed accepted by the
receiving party if the receiving party does not provide written notice
of rejection to the submitting party within thirty (30) (or such
shorter period as the parties may agree upon) days after the
submitting party's notice thereof. If a party rejects a Filing, it
shall include with its rejection notice a detailed description of its
reason(s) for rejection, and shall make specific suggestions as to any
modifications which it believes should be made to the form or content
of such Filing prior to submission. If the submitting party believes
that the modifications suggested by the receiving party are
inappropriate, the submitting party's Coordinator shall contact the
receiving party's Coordinator, and the Coordinators shall arrange and
hold a meeting or discussion between appropriate representatives of
the parties, at a mutually acceptable time and place, to determine a
mutually acceptable form, content and time for the proposed Filing.
Each party shall provide the other with copies of any correspondence,
materials or communications submitted to or received from a
governmental entity or a third party relating to any Filing. SGI will
provide such information regarding the Background Technology,
Foreground Technology and Developed Technology as Company may
reasonably request for purposes of permitting Company and its advisors
to evaluate actual or potential infringement claims directed at
Company Products. Nothing in this Section 14.4 shall be interpreted to
expand SGI's obligations under Section 9.5.
14.5 ENFORCEMENT OF RIGHTS IN FOREGROUND TECHNOLOGY. Before
initiating any action against an alleged infringer of any rights in
the Foreground Technology, each party (the "Enforcing Party") shall
contact the other party to confirm that the alleged infringer has not
been granted a license to use the Foreground Technology by the other
party or has not purchased from the other party products whose use
would entitle the alleged infringer to use the Foreground Technology.
If the alleged infringer has not obtained such a license or purchased
such products, the Enforcing Party shall have the right, without
further consent of the other party, to take such steps as it chooses,
in its sole discretion, to enforce its rights as joint owner of the
Foreground Technology, and the other party shall provide such
reasonable assistance as the Enforcing Party may request in connection
therewith, provided either that such assistance does not require any
out-of-pocket expenditures by the other party or that the Enforcing
Party agrees to reimburse any such out-of-pocket expenses incurred by
the other party. The
Enforcing Party shall be entitled to retain all amounts recovered from
the alleged infringer in connection with the litigation and/or
settlement of any such action. The Enforcing Party shall defend,
indemnify and hold harmless the other party and its Affiliates from
and against any claim, suit or proceeding initiated against the other
party by any alleged infringer in connection with or in response to
actions initiated against the alleged infringer by the Enforcing
Party, provided that (i) the other party gives the Enforcing Party
notice of the claim, suit or proceeding promptly after commencement
thereof, (ii) the other party gives the Enforcing Party sole authority
to defend and/or resolve any such claim, suit or proceeding, and (iii)
the other party gives the Enforcing Party all reasonable assistance
requested by the Enforcing Party in connection with the defense and/or
settlement of the claim, suit or proceeding, at the Enforcing Party's
expense.
14.6 MICROCODE/LIBRARIES, COPROCESSOR COMMAND SET, COPROCESSOR
MICROINSTRUCTION SET, AND MASK WORK. SGI will deliver to Company the
Microcode/Libraries, in source code and object code forms, the
Microcode/Libraries development environment, and documentation of the
Coprocessor Command Set and the Coprocessor Microinstruction Set, at a
time to be mutually agreed upon in writing by SGI and Company. SGI and
Company acknowledge and agree that (a) the Developed Technology is
implemented in part in each of the Microcode/Libraries, the
Coprocessor Command Set, the Coprocessor Microinstruction Set, and the
Mask Work; (b) subject to SGI's rights in the Licensed Background
Technology embodied in each of them, Company shall own any and all
copyrights in the Microcode/Libraries, the Coprocessor Command Set,
the Coprocessor Microinstruction Set, the Developer's Manual and the
Development Environment; (c) subject to SGI's rights in the Licensed
Background Technology embodied in the Coprocessor, SGI and Company
shall jointly own the mask work rights in the Mask Work; and (d) all
Developed Technology incorporated in the Microcode/Libraries,
Coprocessor Command Set, Coprocessor Microinstruction Set, and the
Mask Work shall be subject to the provisions of Sections 6.4 and 6.5
applicable to the Developed Technology. Company hereby grants to SGI a
paid-up, nonexclusive, irrevocable, worldwide license to duplicate,
distribute, modify, enhance, sublicense and otherwise use or exploit
the Microcode/Libraries, the Coprocessor Command Set, the Coprocessor
Microinstruction Set and the Development Environment, subject only to
the provisions of Sections 6.4, 6.5, 14.8 and 14.9.
14.7 FOREGROUND TECHNOLOGY CROSS LICENSES. Notwithstanding the
parties' joint ownership of the Foreground Technology, neither party
shall have the right to license the Foreground Technology to a third
party pursuant to a Cross License unless it obtains the prior, written
agreement of the other party to this Agreement.
14.8 LIMITATIONS ON SGI'S USE OF DEVELOPED TECHNOLOGY. In
addition to the provisions of Sections 6.4 and 6.5, SGI agrees during
the term of this Agreement that SGI shall not manufacture, have
manufactured, use, license or sell the Coprocessor except to the
extent permitted by Section 6.5.
14.9 NO COMPATIBLE PROGRAM, DEVICE OR THING. During the term of
this Agreement, except as otherwise permitted by Company or as
permitted by Section 6.5(b) (which is intended to allow SGI hardware
and software to be used for Packaged Software development by Packaged
Software developers authorized by Company):
(a) SGI will not license any third party to use, distribute or
publish and will not itself use, distribute or publish any version of
the Microcode/Libraries or other computer program, device or thing
that, in unmodified form, (i) would enable video game software or non-
video game software authorized by Company to be used with devices
other than Company Products, or (ii) would enable video game software
or non-video game software which has not been authorized by Company to
be used with Company Products;
(b) SGI will not disclose, use or license any third party to use,
the binary format of the Coprocessor controller registers or the
binary addresses associated with the Coprocessor controller registers;
and
(c) SGI will not disclose or use, or license any third party to
use, the binary command formats for controlling or commanding the
display processor portion of the Coprocessor.
14.10 SOFTWARE DEVELOPMENT BY COMPANY AND LICENSEES. As an
owner of the copyrights in the Microcode/Libraries and the Coprocessor
Microinstruction Set, the Developer's Manual and the Development
Environment Company shall have the right to develop, reproduce and
distribute derivative works thereof, and to grant Licensees the right
to develop, reproduce and distribute derivative works thereof. SGI
makes no claim of rights in any portions of such derivative work(s)
developed by Company and/or any Licensee.
9. Warranty Exclusion. Section 9.2. "Warranty Exclusion"s shall be amended to
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insert the phrase "or Foreground Technology" immediately following the phrase
"Developed Technology", wherever it appears in such section.
10. Limitation of Liability. Article 10.0 is hereby revised to read as follows:
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10.0 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING
WITHOUT LIMITATION LOSS OF PROFIT OR DATA) WHETHER OR NOT ADVISED OF
THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OR
REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INABILITY TO
USE THE BACKGROUND TECHNOLOGY, THE FOREGROUND TECHNOLOGY, OR
OTHERWISE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY
TO THE OTHER EXCEED THE TOTAL AMOUNT PAYABLE BY COMPANY TO SGI UNDER
THIS AGREEMENT. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT
THE POTENTIAL LIABILITY OF THE PARTIES ARISING OUT OF THIS AGREEMENT.
11. Survival of Obligations. Section 11.4 is hereby revised to add the
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provisions of Article 14.0 to the list of provisions setting forth rights and
obligations of the parties that survive termination of the Agreement.
12. Effect of Addendum. Except as amended and supplemented by this Second
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Addendum, the Agreement remains in effect pursuant to its terms, and is hereby
ratified and confirmed.
IN WITNESS WHEREOF, the parties have executed this Second Addendum as of the
date first written above.
NINTENDO CO., LTD. NINTENDO OF AMERICA INC.
By: /s/ [not legible] By: /s/ ▇▇▇▇ [not legible]
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Title: Senior Managing Director Title: Executive Vice President
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SILICON GRAPHICS, INC. MIPS TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: President & Chief Title: President
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Operating Officer
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SCHEDULE C
Invention l XXXXXX
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Invention 2 XXXXXX
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Invention 3 XXXXXX
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Invention 4 XXXXXX
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Invention 5 XXXXXX
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Invention 6 XXXXXX
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SCHEDULE D
Developer's Manual covers the following topics:
. Release Notes for this version of the software.
. Hardware & Software Installation and Troubleshooting.
. System Overview -
Overview of the Hardware Architecture, Run-time Software Architecture, and
Compilation.
. Operating System Overview -
Discussion of the organization of the N 64 Operating System and how to use
it. Includes Threads, Scheduling, Pre-emption, Input/Output Subsystem
Control (Video Interface, Audio Interface, Parallel Interface, and
Controller Interface), and Memory Management.
. Graphics, Reality Signal Processor (RSP) Operation -
How to use Display Lists and Display List Hierarchies, Segments, Managing
the cache, Using matrices, Vertex State, Lighting, Materials, Textures,
Fog, Clipping and Culling.
. Graphics, Reality Display Processor (RDP) Operation - RDP Pipeline
Description, RDP State, Scissoring, Detailed descriptions of each part of
the RDP Pipeline --these include the Rasterizer (RS), Texture Engine
(TX), Texture Filter (TF), Color Combiner (CC), Blender (BL), and Memory
Interface (MI), Use of Texture Mapping, including the interface, Texture
Memory (TMEM), Texture attributes, pipeline, Level-of-Detail (LOD), MIP-
mapping, and special effects. Also, a discussion of the Sprite library,
including the interface, Sprite structures. Sprite attributes. and
tricks.
. The Audio Library -
Overview of the Audio system, including low-level discussion of the Sound
Player, Sequence Player, and Synthesis Driver. Includes descriptions of the
interface for each, as well as how to use special effects such as vibrato,
and how to write a custom Audio Driver which interfaces with the Synthesis
Driver.
. Audio Tools -
How to use the instrument Compiler (ic) for creating sound banks, the ADPCM
tools to create individual sounds and effects, and the MIDI tools to create
and modify MIDI song files.
. Audio File Format - Details of the audio file format structures.
. Using Audio Tools - Performance Tips and Hints, and various examples.
. Scheduling Audio and Graphics Tasks -
Discusses the use of the scheduler (optional), how to create command lists
and manage the proportions of CPU time which the audio tasks and graphics
task receive. Describes the scheduler interface and hints for utilizing it
most effectively.
. Development Tools, Debugger -
Details about the use of the debugger, as well as how it interfaces with
the host workstation to provide feedback to the developer.
. Performance Tuning -
Hints and tips on getting the most performance out of the N 64. Sections
include Geometry Tuning, Raster Tuning, CPU Tuning, and Data Reduction.
Development Environment consists of:
. Game Shop: the debugger for runtime debugging on the N 64.
. dmedia_eoe: contains the midi kernel device driver that enables an SGI
System with IRIX 5.3 installed to interface with a MIDI device;
this is necessary to support N 64 audio development tools.
. Ultra: contains the runtime operating system/audio/graphics libraries
for Packaged Software development. Also contains tools to build
ROM images and sample programs.