1
EXHIBIT 10.32
Licensee: Auspex Systems, Inc.
Agreement Number: SA-AUSPEX060997
AMENDMENT NO. 1 TO SOFTWARE LICENSING AGREEMENT
BETWEEN LICENSEE & AT&T
This Amendment shall amend the Software Licensing Agreement between LICENSEE
and AT&T as follows:
1. The last line of Section 1.6 of the License Agreement will be deleted.
2. In Section 2 of Supplement 01 to the License Agreement, "Host
Processors" is changed to "FMP Architecture".
3. In Section 3 of Supplement 01 to the License Agreement, paragraph 1 is
changed to: "'Derivative Works' means the port of the AT&T Advanced
Server for UNIX Version 4.X to SunOS and Solaris running on LICENSEE's
FMP Architecture (which includes all processors). It is understood and
agreed that LICENSEE's FMP Architecture includes a number of processors
(e.g., host processor, network/file processor) and that AT&T Advanced
Server for UNIX Version 4.X may be ported in the form of one or more
modules operating on one or more such processors, and, further, that the
port of each module may include modified AT&T programming code and/or
new programming code based upon the functionality of the AT&T code.
4. Paragraph 2 in Section 3 of Supplement 01 to the License Agreement will
be deleted.
5. In Section 1.2.1. of Exhibit 1-A of the License Agreement, the "CLASS"
designation is changed to "UNLIMITED KIT FOR FMP ARCHITECTURE".
6. In Section 1.3. of Exhibit 1-A of the License Agreement:
1. In the second line, "Host Processor" is changed to "FMP
Architecture".
2. The following is added at the end of this section: "It is
understood and agreed that (i)LICENSEE's FMP Architecture
includes a number of processors (e.g., host processor, network/file
processor) and that the DERIVED BINARY PRODUCT may be separated into
more than one module with different modules running on different
processors; and (ii) the combination of such modules on such
processors shall constitute a single KIT for purposes of computing
the binary distribution fee pursuant to Section 1.2 above."
7. In Section 5 of Supplement 01 of the Software Licensing Agreement, the
DESIGNATED SITE for the AT&T SOURCE SOFTWARE is changed to: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
8. An additional DESIGNATED SITE for the AT&T SOURCE SOFTWARE will be:
Auspex KK
ATT Shin-kan 6F
▇-▇▇-▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇
This Amendment to the Software Licensing Agreement is attached to and made a
part of the above referenced Agreement. Execution and acceptance of such
Agreement also constitutes execution and acceptance of this Supplement and
Exhibits.
Auspex Systems, Inc. AT&T Corp.
By: By:
--------------------------------- ------------------------------------
(Signature) (Signature)
▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------- -------------------------------------
(Type or print name) (Type or print name)
Director
---------------------------------- -------------------------------------
(Title) (Title)
---------------------------------- -------------------------------------
(Date) (Date)
2
Software Licensing Agreement
between
Auspex Systems Inc.
and
AT&T Corp.
AT&T CONFIDENTIAL
3
June 3, 1997
AGREEMENT NO.: SA-_____
SOFTWARE LICENSING AGREEMENT
BETWEEN LICENSEE & AT&T
Software Agreement. Page ii
SECTION PAGE
1. DEFINITIONS .....................................................................2
2. LICENSEE USE RIGHTS .............................................................3
3. LICENSEE MANUFACTURING RIGHTS ...................................................4
4. LICENSEE DISTRIBUTION LICENSES ..................................................4
5. LICENSEE DESIGNATED SITES .......................................................7
6. LICENSEE CONTRACTORS ............................................................7
7. DELIVERY BY AT&T............................................................ ....8
8. ACCEPTANCE BY LICENSEE ..........................................................8
9. EXPORT BY LICENSEE ..............................................................8
10. LICENSEE LICENSE FEES AND TAXES .................................................9
11. LICENSEE BINARY DISTRIBUTION FEE REPORTS AND PAYMENTS ...........................9
12. LICENSEE RECORDS AND AUDIT .....................................................10
13. TERM AND TERMINATION ...........................................................11
14. AT&T WARRANTY AND INDEMNIFICATION ..............................................12
15. SUPPORT ........................................................................13
16. CONFIDENTIALITY AND USE ........................................................13
17. MISCELLANEOUS ..................................................................14
SUPPLEMENTS
Supplement 01 - Advanced Server for UNIX Systems
EXHIBITS
Exhibit 1 - A Schedule for AT&T Advanced Server for UNIX Systems
AT&T CONFIDENTIAL
4
June 3, 1997 AGREEMENT NO.:
Software Agreement. Page 1 of 15
SOFTWARE LICENSING AGREEMENT
This Software Licensing Agreement is between AT&T Corp., acting for itself and
its AFFILIATES (collectively, "AT&T"), and Auspex Systems Inc., acting for
itself and its AFFILIATES (collectively, "LICENSEE"). AT&T will license AT&T
SOFTWARE PRODUCTS to LICENSEE. On the terms of this Agreement, LICENSEE will
become a source code licensee of certain AT&T SOFTWARE PRODUCTS, and will be
entitled to directly and indirectly distribute certain AT&T SOFTWARE PRODUCTS in
binary code form to end users. The attached Supplement 01 describes the initial
AT&T SOFTWARE PRODUCTS licensed to LICENSEE. The parties may, from time to time,
add other AT&T SOFTWARE PRODUCTS to this Agreement by executing one or more
additional Supplements.
Pages 2 through 15, Supplement 01 and Exhibit -1 A are a part of this Agreement.
This Agreement sets forth the entire agreement between LICENSEE and AT&T
concerning these subjects and merges all prior discussions and writings between
them. Neither LICENSEE nor AT&T shall be bound by any conditions, definitions,
warranties, understandings, or representations with respect to these subjects,
other than as expressly provided in this Agreement or as set forth on or after
the date of execution of this Agreement in writing and signed by an authorized
representative of the party to be bound. No preprinted term appearing in any
document originated by one party shall be enforceable against the other party
unless that term is expressly accepted in writing by an authorized
representative of the party to be bound.
AGREED TO:
AT&T CONFIDENTIAL
5
June 3, 1997 AGREEMENT NO.: SA-_____
Software Agreement. Page 2 of 15
1. DEFINITIONS
1.1. AFFILIATE means (i) in the case of AT&T, any AT&T SUBSIDIARY; AT&T's
parent, AT&T Corp.; and any AT&T Corp. SUBSIDIARY agreeing in writing to
be bound by this Agreement; and (ii) in the case of LICENSEE, any
LICENSEE SUBSIDIARY.
1.2 AUTHORIZED COPIER means a DISTRIBUTOR authorized to make copies of
LICENSEE SOFTWARE PRODUCTS or AT&T SOFTWARE PRODUCTS.
1.3. CLIENT means an end user computer in a local area network.
1.4. COMPUTER means a central processing unit and associated memory or other
peripheral devices.
1.5. COMPUTER PROGRAM means any instruction or instructions that runs on or
in conjunction with a COMPUTER, in source-code, object-code, load
executable, or other form.
1.6. DERIVATIVE WORK means a work which is based upon one or more preexisting
works, and which is a revision, modification, translation, abridgment,
condensation, expansion, collection, compilation, or any other form in
which such preexisting works may be recast, transformed, or adapted, and
which, if prepared without authorization by the owner of the preexisting
work, would constitute a copyright infringement. In this context, AT&T
and Licensee agree that Licensee developed networking and file system
software, neither based on nor containing AT&T SOFTWARE PRODUCT, running
on Licensee's network and file interface processors in Licensee's
servers, and providing companion functionality to AT&T's AS/U port
running on Licensee's host processor does not constitute a "Derivative
Work".
1.7. DESIGNATED SITE means any location listed as such for specific AT&T
SOURCE SOFTWARE or LICENSEE SOURCE SOFTWARE in the applicable Supplement
to this Agreement.
1.8. DOCUMENTATION means electronic or paper copy information pertaining to
COMPUTER PROGRAMS.
1.9. EFFECTIVE DATE means June 5, 1997.
1.10. DISTRIBUTOR means a business entity which redistributes LICENSEE
components, hardware, or software, under an LICENSEE logo, or a business
entity authorized by LICENSEE or another LICENSEE DISTRIBUTOR to receive
copies of AT&T UNMODIFIED BINARY PRODUCTS or AT&T DERIVED BINARY
PRODUCTS from LICENSEE or another DISTRIBUTOR and to furnish such copies
to end user customers and/or DISTRIBUTORS.
1.11. AT&T DERIVED BINARY PRODUCT means a COMPUTER PROGRAM in object code
form, and DOCUMENTATION relating to the use of that COMPUTER PROGRAM,
which are DERIVATIVE WORKS prepared from AT&T SOURCE SOFTWARE.
1.12. AT&T SOFTWARE PRODUCT means one or more of the following as the context
requires: AT&T SOURCE SOFTWARE, AT&T UNMODIFIED BINARY PRODUCTS, or AT&T
DERIVED BINARY PRODUCTS.
1.13. AT&T SOURCE SOFTWARE means COMPUTER PROGRAMS, in source code form, and
DOCUMENTATION relating to those COMPUTER PROGRAMS, as listed in the
applicable Exhibits of the attached Supplements and provided to LICENSEE
by AT&T hereunder.
1.14. AT&T UNMODIFIED BINARY PRODUCT means a COMPUTER PROGRAM in object code
form and DOCUMENTATION related to the use of that COMPUTER PROGRAM, as
listed in the applicable Exhibits of the attached Supplements and
provided to LICENSEE by AT&T hereunder.
AT&T CONFIDENTIAL
6
June 3, 1997 AGREEMENT NO.: SA-_____
Software Agreement. Page 3 of 15
1.15 KIT means an AT&T DERIVED BINARY PRODUCT, installed on one SERVER
configured to support a specified (or unlimited) number of concurrent
CLIENTS.
1.16 MULTIPROCESSOR means a COMPUTER having more than one CPU installed in
single cabinet and connected to the same computer bus or backplane.
1.17 SERVER means a COMPUTER which, at a minimum, supplies file and print
services to CLIENTS in a local area network.
1.18 SUBSIDIARY of a company means a corporation or other legal entity (i)
the majority of whose shares or other securities entitled to vote for
election of directors (or other managing authority) is now or hereafter
controlled by such company either directly or indirectly; or (ii) the
majority of the equity interest in which is now or hereafter owned and
controlled by such company either directly or indirectly; or which does
not have outstanding shares or securities, as may be the case in a
partnership, joint venture, or unincorporated association, but more than
50% of the ownership interest representing the right to make decisions
for such corporation, company, or other entity which is now or hereafter
owned and controlled by such company either directly or indirectly; but
any such corporation or other legal entity shall be deemed to be a
SUBSIDIARY of such company only so long as such control or such
ownership and control exists.
1.19 UPDATE RELEASE of a product means a release designated by the licensor
of the product as a change in the digits to the right of the decimal
[x.(yz)] in the product version number.
1.20 VERSION RELEASE of a product means a release designated by the licensor
of the product as a change in the digit to the left of the decimal
[(x).yz] in the product version number.
2. LICENSEE USE RIGHTS
2.1. Subject to all of the provisions of this Agreement, AT&T grants to
LICENSEE a nontransferable, and nonexclusive right to use, execute,
perform, and display AT&T SOURCE SOFTWARE specified in the applicable
Supplements, solely for LICENSEE's own internal development purposes and
solely at the DESIGNATED SITES for such AT&T SOURCE SOFTWARE. LICENSEE
is permitted to make a reasonable number of copies of AT&T SOURCE
SOFTWARE at each DESIGNATED SITE consistent with the development and
support functions of that DESIGNATED SITE and provided that a log is
maintained of such copies. Such right to use includes the right to
prepare or have prepared DERIVATIVE WORKS based on such AT&T SOURCE
SOFTWARE provided that any such DERIVATIVE WORK that contains or is
based on any part of the AT&T SOURCE SOFTWARE subject to this Agreement
is treated hereunder the same as such AT&T SOURCE SOFTWARE.
2.2. Subject to all of the provisions of this Agreement, AT&T grants to
LICENSEE worldwide, nontransferable, and nonexclusive rights to use,
copy, and combine each AT&T UNMODIFIED BINARY PRODUCT or AT&T DERIVED
BINARY PRODUCT. No right is granted for, and LICENSEE is specifically
prohibited from, reverse assembling, reverse compiling, or otherwise
putting into human readable form, AT&T UNMODIFIED BINARY PRODUCTS or
preparing DERIVATIVE WORKS based on AT&T UNMODIFIED BINARY PRODUCTS.
2.3. LICENSEE's license shall extend only to the AT&T SOFTWARE PRODUCTS
specified in the applicable Supplements for such AT&T SOFTWARE PRODUCTS
and, for so long as LICENSEE pays the Annual Support Fee specified in
the applicable Software Support Agreement for those AT&T SOFTWARE
PRODUCTS, to all UPDATE RELEASES of those AT&T SOFTWARE PRODUCTS
provided in accordance with such Supplement. LICENSEE's license does not
extend to VERSION RELEASES of AT&T SOFTWARE PRODUCTS.
AT&T CONFIDENTIAL
7
June 3, 1997 AGREEMENT NO.: SA-_____
Software Agreement. Page 4 of 15
2.4. The license rights granted by this Section 2. with respect to an AT&T
SOFTWARE PRODUCT are effective only upon (i) LICENSEE's acceptance of
that AT&T SOFTWARE PRODUCT under Section 8., (ii) LICENSEE's payment of
the right-to-use fee, if any, for that AT&T SOFTWARE PRODUCT specified
in the applicable Supplement for that AT&T SOFTWARE PRODUCT, and (iii)
any other terms and conditions in the applicable Supplement.
2.5. LICENSEE of AT&T SOURCE SOFTWARE shall not modify the code except as
required to adapt the same to the LICENSEE's computer systems, local
area network products, or significant valueadded software products.
LICENSEE shall own any such modifications, subject to its continuing
obligations as to DERIVATIVE WORKS.
2.6. No derivative work consisting of a translation of AT&T SOFTWARE PRODUCTS
into another language shall be made by or for LICENSEE without the prior
written approval of AT&T. In the event LICENSEE requests in writing from
AT&T a translated version of an AT&T SOFTWARE PRODUCT which will not be
available as an AT&T offering for a period of three (3) months from the
date of such request, both parties agree to negotiate in, good faith the
terms and conditions of an agreement for the development and licensing
of such a translation.
2.7. LICENSEE may prepare a DERIVATIVE WORK of the AT&T SOURCE SOFTWARE which
will operate on one of the porting hardware and operating system
environments identified in the Supplement for the product being
licensed. LICENSEE may request an addition to the environments at any
time. AT&T will not withhold consent to add any environment unless AT&T
has granted prior exclusive rights in the environment to a third party
or has decided to retain all rights in the environment on an exclusive
basis for itself. AT&T shall not be required to prove the existence of a
prior exclusive right or decision to retain exclusive rights in the
environment itself.
2.8 No title to any intellectual property in any AT&T SOFTWARE PRODUCT or
DERIVATIVE WORK is transferred to LICENSEE, LICENSEE'S DISTRIBUTOR, end
user or any other party.
3. LICENSEE MANUFACTURING RIGHTS
3.1. AT&T grants to LICENSEE non-transferable, worldwide, and non-exclusive
rights:
3.1.1. to reproduce or have reproduced copies of AT&T
UNMODIFIED BINARY PRODUCTS and AT&T DERIVED BINARY PRODUCTS;
and
▇.▇.▇.▇▇ combine AT&T UNMODIFIED BINARY PRODUCTS and AT&T
DERIVED BINARY PRODUCTS with other COMPUTER PROGRAMS and
DOCUMENTATION.
4. LICENSEE DISTRIBUTION LICENSES
4.1. AT&T grants to LICENSEE non-transferable, worldwide, and non-exclusive
rights:
4.1.1. subject to the payments specified in Section 11., to furnish
copies of AT&T UNMODIFIED BINARY PRODUCTS or AT&T DERIVED
BINARY PRODUCTS either directly or through LICENSEE
DISTRIBUTORS and consistent with Section 9., to end user
customers anywhere in the world for use on end user customer
COMPUTERs; and
4.1.2. to use or allow others to use, including LICENSEE DISTRIBUTORS
and end users, without fee or royalty obligation to AT&T, AT&T
UNMODIFIED BINARY PRODUCTS or AT&T DERIVED BINARY PRODUCTS
solely for marketing, field test (including beta test),
development, testing, training, education, or demonstration
purposes.
AT&T CONFIDENTIAL
8
June 3, 1997 AGREEMENT NO.: SA-______
Software Agreement. Page 5 of 15
4.2. The entity (LICENSEE or an LICENSEE DISTRIBUTOR) furnishing copies of an
AT&T UNMODIFIED BINARY PRODUCT or AT&T DERIVED BINARY PRODUCT to an end
user customer pursuant to Section 4.1. shall provide a license to such
end user customer, before or at the time of furnishing each such copy to
such customer, in the same manner that, and containing terms that are no
less stringent than, LICENSEE licenses its own similar software product
and which contains terms substantially in conformance with the
following, that:
4.2.1. only a nonexclusive right to use such copy of the AT&T
UNMODIFIED BINARY PRODUCT or AT&T DERIVED BINARY PRODUCT on one
COMPUTER at a time is granted to such end user customer;
4.2,2. no title to the intellectual property in the AT&T UNMODIFIED
BINARY PRODUCT or AT&T DERIVED BINARY PRODUCT is transferred to
such end user customer;
4.2.3. such end user customer will not copy the AT&T UNMODIFIED BINARY
PRODUCT or AT&T DERIVED BINARY PRODUCT except as necessary (for
example to create archive copies) to use such AT&T UNMODIFIED
BINARY PRODUCT or AT&T DERIVED BINARY PRODUCT on such one
COMPUTER, or except in accordance with LICENSEE's procedures for
such copies that insure proper recording of Binary Distribution
Fees;
4.2.4. such end user customer will not transfer the AT&T UNMODIFIED
BINARY PRODUCT or AT&T DERIVED BINARY PRODUCT to any other party
except as authorized by the entity furnishing the AT&T
UNMODIFIED BINARY PRODUCT or AT&T DERIVED BINARY PRODUCT, and in
all cases subject to the transferring end user's license being
transferred to the transferee;
4.2.5. such end user customer will not export or re-export the AT&T
UNMODIFIED BINARY PRODUCT or AT&T DERIVED BINARY PRODUCT without
the appropriate United States and foreign government licenses;
and
4.2.6. such end user customer will not decompile or disassemble the
AT&T UNMODIFIED BINARY PRODUCT or AT&T DERIVED BINARY PRODUCT or
put them into human readable form.
4.3. LICENSEE shall require each LICENSEE DISTRIBUTOR to enter into a written
agreement with its supplier of AT&T UNMODIFIED BINARY PRODUCTS or AT&T
DERIVED BINARY PRODUCTS (LICENSEE or another LICENSEE DISTRIBUTOR)
before any AT&T UNMODIFIED BINARY PRODUCT or AT&T DERIVED BINARY PRODUCT
is furnished to such LICENSEE DISTRIBUTOR. Such agreement shall include
provisions which are substantially equivalent to the relevant substance
of Sections 4.2., 4.8., 4.10., and 4.11. of this Agreement. For a
LICENSEE DISTRIBUTOR who is also to be an AUTHORIZED COPIER, such
agreement shall also include provisions consistent with and containing
the relevant substance of Sections 4.5., 4.7. and 4.9. of this
Agreement; provided, however, that only LICENSEE, and AUTHORIZED COPIERS
which have been so authorized by LICENSEE directly, may designate other
LICENSEE DISTRIBUTORS as AUTHORIZED COPIERS.
4.4. LICENSEE DISTRIBUTORS who are not also AUTHORIZED COPIERS may not make
copies of AT&T UNMODIFIED BINARY PRODUCTS or AT&T DERIVED BINARY
PRODUCTS, but may furnish to end user customers and other LICENSEE
DISTRIBUTORS copies of AT&T UNMODIFIED BINARY PRODUCTS or AT&T DERIVED
BINARY PRODUCTS furnished to such LICENSEE DISTRIBUTOR by LICENSEE or
other LICENSEE DISTRIBUTORS. In such cases the product name appearing on
such copies shall not be deleted or altered by such an LICENSEE
DISTRIBUTOR.
AT&T CONFIDENTIAL
9
June 3, 1997 AGREEMENT NO.: SA-_____
Software Agreement. Page 6 of 15
4.5. Consistent with Sections 4.9. and 4.10., a LICENSEE DISTRIBUTOR who is
also an AUTHORIZED COPIER may make copies of AT&T UNMODIFIED BINARY
PRODUCTS or AT&T DERIVED BINARY PRODUCTS and furnish such copies to end
user customers and other LICENSEE DISTRIBUTORS with the other products,
it any, and in the packaging of that LICENSEE DISTRIBUTOR'S choosing.
4.6. LICENSEE shall use its reasonable efforts to enforce the agreements with
LICENSEE DISTRIBUTORS and the end user customers of LICENSEE and
LICENSEE DISTRIBUTORS.
4.7. If an LICENSEE DISTRIBUTOR fails to fulfill one or more of its
obligations required under this Agreement, AT&T may, upon its election
and in addition to any other remedies that it may have, at any time
notify LICENSEE in writing of such failure and request that LICENSEE
terminate that LICENSEE DISTRIBUTOR'S rights granted through this
Agreement by not less than three months' written notice to such LICENSEE
DISTRIBUTOR specifying any such failure, unless within the period of
such notice all failures specified therein shall have been remedied.
Upon such termination LICENSEE shall determine a suitable time, not to
exceed 120 days, for such LICENSEE DISTRIBUTOR to discontinue use of and
return, or destroy and certify the destruction of, all copies of AT&T
UNMODIFIED BINARY PRODUCTS or AT&T DERIVED BINARY PRODUCTS then in its
possession for which Binary Distribution Fees (as defined in the
applicable Supplement) have not been paid.
4.8. LICENSEE agrees that when a SUBSIDIARY'S or an LICENSEE DISTRIBUTOR'S
relationship to LICENSEE changes so that it is no longer a SUBSIDIARY of
LICENSEE or an LICENSEE DISTRIBUTOR, (i) all rights of such former
SUBSIDIARY or LICENSEE DISTRIBUTOR under this Agreement shall
immediately cease, (ii) ail rights of all LICENSEE DISTRIBUTORS and all
LICENSEE AUTHORIZED COPIERS whose rights derive from that former
SUBSIDIARY or LICENSEE DISTRIBUTOR shall immediately cease, and (iii)
such former SUBSIDIARY or LICENSEE DISTRIBUTOR shall return to LICENSEE,
or destroy and certify the destruction of, all copies of AT&T UNMODIFIED
BINARY PRODUCTS or AT&T DERIVED BINARY PRODUCTS then in its possession
for which Binary Distribution Fees have not been paid. However, such
former SUBSIDIARY or LICENSEE DISTRIBUTOR may continue to use, or
LICENSEE may collect from such former SUBSIDIARY or LICENSEE DISTRIBUTOR
and distribute, copies of AT&T UNMODIFIED BINARY PRODUCTS or AT&T
DERIVED BINARY PRODUCTS for which Binary Distribution Fees have been
paid on the same basis that an end user customer may use copies of AT&T
UNMODIFIED BINARY PRODUCTS or AT&T DERIVED BINARY PRODUCTS pursuant to
Section 4.2.
4.9. Notices
4.9.1. Any notice provided by AT&T to LICENSEE in a timely manner,
acknowledging a contribution of a third party appearing in an
AT&T SOFTWARE PRODUCT, shall be included in corresponding
portions of AT&T UNMODIFIED BINARY PRODUCTS or AT&T DERIVED .
BINARY PRODUCTS made by LICENSEE or LICENSEE AUTHORIZED
COPIERS. Instructions regarding such notices may appear in the
Exhibits for certain AT&T SOFTWARE PRODUCTS.
4.9.2. Each portion of an AT&T UNMODIFIED BINARY PRODUCT or AT&T
DERIVED BINARY PRODUCT shall include an appropriate copyright
notice. Such copyright notice shall be the copyright notice or
notices appearing in or on the corresponding portions of the
AT&T SOFTWARE PRODUCT on which such AT&T UNMODIFIED BINARY
PRODUCT or AT&T DERIVED BINARY PRODUCT is based (except that
LICENSEE may remove all copyright notices of parties other than
AT&T from AT&T DERIVED BINARY PRODUCTS); in addition, if
copyrightable changes are made in developing such AT&T DERIVED
BINARY PRODUCT, LICENSEE, may include a copyright notice
identifying the owner of such changes. Nothing in this
Agreement will constitute an approval by AT&T for LICENSEE to
use AT&T's logos.
AT&T CONFIDENTIAL
10
June 3, 1997 AGREEMENT NO.: SA-______
Software Agreement. Page 7 of 15
4.10. LICENSEE shall market each AT&T UNMODIFIED BINARY PRODUCT or AT&T
DERIVED BINARY PRODUCT consistent with the designation as specified in
the applicable Exhibit containing such AT&T UNMODIFIED BINARY PRODUCT or
AT&T DERIVED BINARY PRODUCT. Notwithstanding the foregoing, LICENSEE
shall not use or display any AT&T logo in LICENSEE's materials or
packaging without AT&T's prior written permission. LICENSEE shall not
use or imitate the trade dress of AT&T's products without the prior
written approval of AT&T.
4.11. Any AT&T UNMODIFIED BINARY PRODUCT or AT&T DERIVED BINARY PRODUCT which
LICENSEE or an LICENSEE DISTRIBUTOR distributes hereunder to the United
States of America, its agencies, instrumentalities, and/or contractors
shall be furnished with "Restricted Rights" as described below. LICENSEE
or the LICENSEE DISTRIBUTOR, as the case may be, must affix a legend to
each portion of an AT&T UNMODIFIED BINARY PRODUCT or AT&T DERIVED BINARY
PRODUCT provided to such a customer which conforms to the following:
Restricted Rights Notice: Use, duplication, or disclosure is subject
to restrictions set forth in 48 CFR 52.227-19(c)(1), (2) or DFAR
Supplement 252.227-7013(c)(1)(ii), as applicable.
5. LICENSEE DESIGNATED SITES
5.1. LICENSEE may at any time notify AT&T in writing of any proposed changes
(i.e., replacements or additions) that LICENSEE wishes to make to the
DESIGNATED SITES for specific AT&T SOURCE SOFTWARE. AT&T reserves the
right to approve or disapprove of LICENSEE's proposed changes; however,
AT&T may not withhold its approval of changes involving LICENSEE owned
or operated facilities, and will not otherwise unreasonably withhold its
approval. AT&T will prepare an amendment to the Supplement for that AT&T
SOURCE SOFTWARE to cover such approved changes. Changes covered by such
an amendment shall become effective after execution of such amendment by
LICENSEE and by AT&T and, in the case of each additional DESIGNATED
SITE, receipt by AT&T of the appropriate fee; replacement DESIGNATED
SITES do not require the payment of additional fees.
5.2. On AT&T's request, but not more frequently than annually, LICENSEE shall
furnish to AT&T a statement, certified by an authorized representative
of LICENSEE, listing the location of all DESIGNATED SITES hereunder and
stating that the use by LICENSEE of AT&T SOURCE SOFTWARE has been
reviewed and that each such copy of AT&T SOURCE SOFTWARE is being used
solely at the DESIGNATED SITES for such copy of AT&T SOURCE SOFTWARE in
full compliance with the provisions of this Agreement.
6. LICENSEE CONTRACTORS
6.1. LICENSEE may permit access to AT&T SOURCE SOFTWARE by its contractors
and allow use of AT&T SOURCE SOFTWARE by its contractors at the
DESIGNATED SITES for that AT&T SOURCE SOFTWARE, provided such access and
use is exclusively for LICENSEE in connection with work called for in
written agreements between LICENSEE and such contractors in accordance
with Section 6.5.
6.2. Any claim, demand, or right of action arising on behalf of a contractor
from the furnishing to it or use by it of AT&T SOFTWARE PRODUCTS shall
be solely against LICENSEE.
6.3. When a contractor's work for LICENSEE is completed, all copies of AT&T
SOURCE SOFTWARE furnished to such contractor or made by such contractor
and all copies of any DERIVATIVE WORKS made by such contractor based on
AT&T SOURCE SOFTWARE shall be returned to LICENSEE or destroyed,
including any copies stored in any computer memory or storage medium.
AT&T CONFIDENTIAL
11
June 3, 1997 AGREEMENT NO.: SA-_____
Software Agreement. Page 8 of 15
6.4. A contractor may not acquire any ownership interest in any DERIVATIVE
WORK of AT&T SOURCE SOFTWARE.
6.5. LICENSEE and each of its contractors shall enter into a written
agreement before or at the time LICENSEE permits access to or allows use
of AT&T SOURCE SOFTWARE by that contractor, or LICENSEE furnishes AT&T
SOURCE SOFTWARE to that contractor, in which that contractor shall agree
to the same responsibilities and obligations as to confidentiality and
other restrictions pertaining to the use of AT&T SOURCE SOFTWARE as
those undertaken by LICENSEE under this Agreement. Such written
agreement shall also be consistent with the requirements of this
Section. Copies of such agreements shall be provided to AT&T on request;
however, portions of such agreements not required by this Section may be
deleted from such copies.
7. DELIVERY BY AT&T
Subject to the provisions found in the Exhibit of the Supplement for the
particular AT&T SOFTWARE PRODUCT, AT&T shall furnish to LICENSEE one
copy of such AT&T SOFTWARE PRODUCT in the form identified in the Exhibit
of the Supplement, and in accordance with the schedule in the Exhibit of
the Supplement, for such products.
8. ACCEPTANCE BY LICENSEE
8.1. LICENSEE shall have 60 days from receipt of a version of an AT&T
SOFTWARE PRODUCT, supported and tested by AT&T, to ensure that said
product conforms with the specifications set forth in the Exhibit of the
Supplement attached hereto.
8.2. If an AT&T SOFTWARE PRODUCT does not conform with the specifications
specified in Section 8.1., LICENSEE may promptly notify AT&T in writing
of such non-conformance in reasonable detail. AT&T shall have 45 days
after receipt of such notice, or such longer time as the parties may
agree, to correct such non-conformance. AT&T shall use reasonable
efforts to correct any reproducible non-conformance and to resubmit a
corrected AT&T SOFTWARE PRODUCT within the initial 45 days following
receipt of the initial notice from LICENSEE. LICENSEE shall have 30 days
after re-submission of such corrected AT&T SOFTWARE PRODUCT to again
evaluate it against the applicable specifications. In the event that
such resubmitted product still exhibits nonconformance, LICENSEE may
again notify AT&T in writing of such remaining non-conformance within 30
days after the receipt of the corrected AT&T SOFTWARE PRODUCT. In the
event that (i) within 30 days after receipt of the second notice
specified above AT&T has not corrected any remaining non-conformance
that is reproducible and resubmitted a corrected version of such AT&T
SOFTWARE PRODUCT to LICENSEE, or (ii) such resubmitted product still
exhibits reproducible non-conformance, LICENSEE may immediately
terminate the applicable Supplement upon written notice to AT&T, AT&T
shall refund all fees paid by LICENSEE for such AT&T SOFTWARE PRODUCT,
and LICENSEE shall certify the destruction of all copies of such AT&T
SOFTWARE PRODUCT in accordance with Section 13.2. of this Agreement.
9. EXPORT BY LICENSEE
9.1. LICENSEE agrees that it will comply with any and all applicable laws
governing export of AT&T SOFTWARE PRODUCTS. LICENSEE agrees that it will
obtain any and all necessary export licenses for any export. For
purposes of this Section 9., "export by LICENSEE" includes any
disclosure of an AT&T SOFTWARE PRODUCT to a foreign national where such
disclosure is considered an export by the applicable export control
authority. LICENSEE's obligations to AT&T in this Section 9.1. are
subject to AT&T providing LICENSEE with the usual published technical
specifications and Export Commodity Control Numbers, as appropriate, to
enable LICENSEE to make its own licensing determinations or applications
for such products.
AT&T CONFIDENTIAL
12
June 3, 1997 AGREEMENT NO.: SA-_____
Software Agreement. Page 9 of 15
9.2. LICENSEE hereby assures AT&T that it does not intend to and will not
knowingly, without the prior written consent, if required, of the Office
of Export Administration of the U.S. Department of Commerce, Washington,
D.C. 20230, transmit, directly or indirectly:
9.2.1. AT&T SOFTWARE PRODUCTS; or
9.2.2. any immediate product (including processes and services)
produced directly by the use of any AT&T SOFTWARE PRODUCT; or
9.2.3. any commodity produced by such immediate product if the
immediate product of any AT&T SOFTWARE PRODUCT is a plant
capable of producing a commodity or is a major component of such
plant;
to Iran, Iraq, Syria, Yugoslavia, the People's Republic of China, or any
Group Q, S, W, Y, or Z country specified in Supplement No. 1 to Section
770 of the Export Administration Regulations issued by the U.S.
Department of Commerce.
10. LICENSEE LICENSE FEES AND TAXES
10.1. LICENSEE agrees that, within 30 days after receipt of an invoice issued
by AT&T after the EFFECTIVE DATE, LICENSEE shall pay to AT&T the fees
for the AT&T SOFTWARE PRODUCTS required by the Supplement initially
attached hereto, unless LICENSEE reasonably disputes such invoice.
10.2. Within 30 days after receipt of a correct invoice issued by AT&T after
the effective date of an additional Supplement and the acceptance by
LICENSEE of the additional AT&T SOFTWARE PRODUCT shipped pursuant to
such Supplement, LICENSEE shall pay to AT&T the fee required by such
additional Supplement for the DESIGNATED SITES or the AT&T SOFTWARE
PRODUCT listed in such additional Supplement.
10.3. LICENSEE shall be responsible for the payment of all taxes, including
any sales or use tax (and any related interest or penalty), however
designated, imposed as a result of the licensing of AT&T SOFTWARE
PRODUCTS and development activities hereunder, except (i) any taxes
imposed which do not arise under the LICENSEE licensing or development
activities contemplated by this Agreement; and (ii) taxes based on
AT&T's net income or franchise taxes imposed by any governmental entity.
Subject to the foregoing, fees specified in Supplements to this
Agreement and in Exhibits attached to such Supplements do not include
taxes. If AT&T is required to collect a tax to be paid by LICENSEE,
LICENSEE shall reimburse AT&T for that tax paid by AT&T within 60 days
of demand unless LICENSEE disputes the obligation to pay such tax.
11. LICENSEE BINARY DISTRIBUTION FEE REPORTS AND PAYMENTS
11.1. For the rights granted under this Agreement, LICENSEE shall pay to AT&T,
except as otherwise provided herein, Binary Distribution Fees for AT&T
UNMODIFIED BINARY PRODUCTS and AT&T DERIVED BINARY PRODUCTS or portions
thereof, either (i) furnished by LICENSEE to an end user customer or to
an LICENSEE DISTRIBUTOR, (ii) made by an AUTHORIZED COPIER and furnished
by such AUTHORIZED COPIER to a customer or to another LICENSEE
DISTRIBUTOR or (iii) put into use by LICENSEE on a COMPUTER of LICENSEE.
The amounts of such Binary Distribution Fees are listed in the
applicable Supplement for each AT&T SOFTWARE PRODUCT. For the purposes
of this Agreement, the effective date for establishing an obligation
under this Section shall be the date when LICENSEE first sells, leases,
or puts into use the AT&T UNMODIFIED BINARY PRODUCT or AT&T DERIVED
BINARY PRODUCT.
11.2. LICENSEE shall notify AT&T in writing within 30 days of when it begins
providing AT&T UNMODIFIED BINARY PRODUCTS or AT&T DERIVED BINARY
PRODUCTS or portions thereof
AT&T CONFIDENTIAL
13
June 3, 1997 AGREEMENT NO.: SA-_____
Software Agreement. Page l of 15
subject to Binary Distribution Fees to customers or LICENSEE
DISTRIBUTORS, or puts any AT&T UNMODIFIED BINARY PRODUCTS or AT&T
DERIVED BINARY PRODUCTS or portions thereof into use on LICENSEE's
COMPUTERs.
11.3. Within 30 days after the end of each quarter ending on March 31st, June
30th, September 30th or December 31st, commencing with the quarter
containing the date identified in Section 11.2., LICENSEE shall furnish
to AT&T a written statement for each AT&T UNMODIFIED BINARY PRODUCTS or
AT&T DERIVED BINARY PRODUCTS for which LICENSEE has given notice to AT&T
pursuant to Section 11.2., signed by an authorized representative of
LICENSEE, identifying:
11.3.1. The number of copies of each AT&T DERIVED BINARY PRODUCT for
which LICENSEE owes Binary Distribution Fees under Section
11.1., in a manner consistent with the pricing Exhibit for such
AT&T DERIVED BINARY PRODUCT.
11.3.2. The number of copies of each AT&T UNMODIFIED BINARY PRODUCT for
which LICENSEE owes Binary Distribution Fees under Section
11.1., in a manner consistent with the pricing Exhibit for such
AT&T UNMODIFIED BINARY PRODUCT.
11.3.3. The number of copies of each AT&T DERIVED BINARY PRODUCT and
AT&T UNMODIFIED BINARY PRODUCT for which LICENSEE does not owe
a Binary Distribution Fee, but only at AT&T's specific request
and only if that information is available to LICENSEE.
11.3.4. The Binary Distribution Fees payable for the AT&T UNMODIFIED
BINARY PRODUCTS or AT&T DERIVED BINARY PRODUCTS, or portions
thereof.
11.4. Within the 30 day period described in Section 11.3., LICENSEE shall,
irrespective of its own business and accounting methods, pay to AT&T the
quarterly payment for such quarter as shown in the statement required by
Section 11.3.
11.5. Payments provided for in this Agreement and its Supplements and Exhibits
shall, when overdue and not in dispute, be subject to a late payment
charge calculated at an annual rate of 1% over the prime rate of
Citibank NA until paid; provided, however, that if the amount of such
late payment charge exceeds the maximum permitted by law for such
charge, such charge shall be reduced to such amount.
11.6. Additionally, notwithstanding anything herein to the contrary, LICENSEE
will owe AT&T no fees or royalties for copies of AT&T UNMODIFIED BINARY
PRODUCTS or AT&T DERIVED BINARY PRODUCTS which are returned to LICENSEE
by its end-user customers or DISTRIBUTOR or destroyed pursuant to
LICENSEE's product warranties.
12. LICENSEE RECORDS AND AUDIT
12.1. LICENSEE shall keep full, clear, and accurate records, for three years
after the events they reflect, sufficient to prepare the statements to
AT&T required by Section 11.
12.2. Each AUTHORIZED COPIER shall keep full, clear, and accurate records, for
three years after the events they reflect, sufficient to prepare the
statements to LICENSEE required by Section 11.
12.3. LICENSEE shall keep full, clear, and accurate records of the identities
and locations of LICENSEE AUTHORIZED COPIERS.
12.4. AT&T shall have the right, for three years after the events they
reflect, through its accredited third party auditing representatives, to
make an examination and audit, during normal business hours, not more
frequently than annually, upon reasonable prior notice to LICENSEE, of
all records kept
AT&T CONFIDENTIAL
14
June 3, 1997 AGREEMENT NO.: SA-_____
Software Agreement. Page 11 of 15
pursuant to this Section and Section 11. by LICENSEE for itself and
LICENSEE AUTHORIZED COPIERS and such other records and accounts as may
under recognized accounting practices contain information bearing upon
the amounts payable to AT&T under this Agreement. Upon reasonable cause,
AT&T may request that LICENSEE conduct an audit of an LICENSEE AUTHORIZED
COPIER and permit AT&T's accredited third party auditing representative
to review the results. Prompt adjustment shall be made by the proper
party to compensate for any errors or omissions disclosed by such
examination or audit. Neither such right to examine and audit, nor the
right to receive such adjustment, shall be affected by any statement to
the contrary appearing on checks or otherwise, unless such statement
appears in a letter signed by the party having such right and delivered
to the other party expressly waiving such right. The failure of AT&T to
request an audit prior to the expiration of LICENSEE's obligation to
retain records shall not constitute a waiver of any cause of action which
arises out of this Agreement. AT&T agrees that, prior to conducting such
an audit, its auditing representative will sign a suitable
confidentiality agreement with LICENSEE and it will disclose to AT&T only
that information which is necessary for AT&T to understand the findings
of the audit, which information will in no event include the names and
locations of LICENSEE customers. AT&T shall pay the fees and expenses of
the auditor unless the auditor's report shows noncompliance in an
aggregate amount exceeding 10% of the amount properly due, in which case
LICENSEE shall pay the fees and expenses of the auditor for that audit.
An audit conducted under this Section 12.4. shall not in any way affect
LICENSEE's obligation to comply with its financial obligations under this
Agreement.
13. TERM AND TERMINATION
13.1. The term of this Agreement begins on the EFFECTIVE DATE and continues
until terminated pursuant to this Section 13.
13.2. LICENSEE may terminate its rights under this Agreement with respect to a
AT&T SOFTWARE PRODUCT by certifying in writing that LICENSEE has
discontinued use of and returned or destroyed all copies of AT&T
SOFTWARE PRODUCT.
13.3. If one party materially breaches one or more of its obligations under
this Agreement, the other party may at any time, upon its election and
in addition to any other remedies that it may have, initiate termination
of all the rights granted by it hereunder, by not less than two months'
written notice to the breaching party specifying such breach in
reasonable detail. If the breaching party is unable to cure such breach
within such two month period, or after a reasonable additional period if
the breach is of a type which by its nature cannot reasonably be cured
within two months, the nonbreaching party may, by further written
notice, terminate this Agreement 30 days from the date of such further
notice, unless within such additional 30 day period such breach has been
cured. Notwithstanding the foregoing, if the breaching party is in
material default of its confidentiality or use obligations under Section
16., the non-breaching party may, upon its election and in addition to
any other remedies that it may have, immediately terminate all rights
granted by it hereunder. If the breaching party is LICENSEE, upon any
such termination, LICENSEE shall immediately discontinue use of and
return, or destroy and certify the destruction of, all copies of the
AT&T SOFTWARE PRODUCTS, except as Section 13.4. provides.
13.4. If termination occurs under Section 13.3. after LICENSEE has furnished
copies of AT&T UNMODIFIED BINARY PRODUCT or AT&T DERIVED BINARY PRODUCT
to an end user, under a license granted hereunder, the LICENSEE may
retain sufficient copies of the AT&T SOURCE SOFTWARE for the sole
purpose of fulfilling contractual obligations to provide ongoing support
to that end user. At such time as the LICENSEE has no contractual
obligations to any end users for ongoing support, the LICENSEE shall
immediately stop using, and shall return or certify the destruction of,
all copies of the AT&T SOURCE SOFTWARE, AT&T UNMODIFIED BINARY PRODUCTS,
AND AT&T DERIVED BINARY PRODUCTS.
AT&T CONFIDENTIAL
15
June 3, 1997 AGREEMENT NO.: SA-_____
Software Agreement. Page 12 of 15
13.5. In the event of termination of rights under Sections 13.2. or 13.3.,
each party shall refund any amounts paid to it under this Agreement
which amounts were overpaid by the other, but no other amounts properly
paid under this Agreement shall be refunded.
13.6. A waiver of a breach of any term of this Agreement shall not be
construed as a waiver of any later breach of that term or as a waiver of
the term itself. A party's performance after the other party's breach
shall not be construed as a waiver of that breach.
13.7. The following shall survive termination of this Agreement for any
reason: Sections 4.8., 6.4., 9., 10.3., 12., 13., 14., 16., 17.1.,
17.3., 17.10., 17.11., and any other Sections or Exhibits to the extent
necessary to achieve the survival of any Sections specified in this
Section 13.7.; no other Sections of this Agreement shall survive
termination. In addition, all financial obligations which had 'accrued
but which were unpaid as of the effective date of termination shall
survive termination, and all financial obligations which would have
accrued after the effective date of termination shall terminate.
14. AT&T WARRANTY AND INDEMNIFICATION
14.1. SUBJECT TO SECTION 14.1.1., AT&T AND OTHER DEVELOPERS MAKE NO OTHER
REPRESENTATIONS OR WARRANTIES, EXPRESSLY OR IMPLIEDLY. BY WAY OF EXAMPLE
BUT NOT OF LIMITATION, AT&T AND OTHER DEVELOPERS MAKE NO REPRESENTATIONS
OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
14.1.1. AT&T represents that it has the sufficient right, title, and
interest in the AT&T SOFTWARE PRODUCTS in the unmodified form
provided to LICENSEE hereunder to enter into this Agreement.
AT&T agrees to defend, at its expense, any suit against
LICENSEE, based upon a claim that AT&T does not have sufficient
right, title, and interest in the AT&T SOFTWARE PRODUCTS to make
this Agreement, or that the AT&T SOFTWARE PRODUCT infringes, a
United States trademark or copyright (insofar as such
infringement relates to the DOCUMENTATION for or the code of the
AT&T SOFTWARE PRODUCT), and to pay any settlement, or any
damages finally awarded after appeal (including costs and
attorney fees, if any, awarded as part of the final judgment) in
any such suit.
14.1.2. AT&Ts obligations under Section 14.1.1. shall not be effective
unless (i) AT&T is notified in writing of any notice of claim or
of threatened or actual suit and (ii) AT&T is given full control
of the defense and/or settlement, together with full cooperation
by LICENSEE at AT&T's expense, including the provision of all
relevant information available to LICENSEE, with respect to such
defense and/or settlement of the same.
14.1.3. Following written notification of a claim of a threatened or
actual suit, AT&T may at its own expense and in addition to
AT&T's obligations in Section 14.1.1. (i) procure for LICENSEE
the right to continue to market, use, and have others use the
alleged infringing AT&T SOFTWARE PRODUCT; or (ii) make it
non-infringing; or (iii) if a permanent injunction should issue
terminate the applicable Supplement for such AT&T SOFTWARE
PRODUCT and refund all the fees (subject to five year straight
line depreciation) received from LICENSEE for such AT&T SOFTWARE
PRODUCT. If AT&T elects to replace or modify such AT&T SOFTWARE
PRODUCT, such replacement shall meet substantially the
specifications as provided or referenced in the applicable
Exhibit of the Supplement for such AT&T SOFTWARE PRODUCT.
14.1.4. AT&T shall have no liability for any claim alleging patent
infringement whatsoever, or for copyright infringement based on
LICENSEE's, an LICENSEE DISTRIBUTOR'S, or an end user's (i)
continued use after notification of infringement of other than
the then
AT&T CONFIDENTIAL
16
June 3, 1997 AGREEMENT NO.: SA_____
Software Agreement. Page 13 of 15
current release of the AT&T SOFTWARE PRODUCT received from AT&T
if such claim would have been avoided by use of the then current
release so long as that release was made available to LICENSEE,
LICENSEE DISTRIBUTORS, and end users without additional charge,
(ii) combination of an AT&T SOFTWARE PRODUCT with a product not
delivered by AT&T hereunder, or (iii) the development of a
DERIVATIVE WORK, if such claim would have been avoided by the
exclusive use of the AT&T SOFTWARE PRODUCT in the form delivered
by AT&T to LICENSEE hereunder.
14.1.5. AT&T shall have no obligation to LICENSEE for any claim made
against LICENSEE which arises from the unauthorized use,
license, or other disposition of an AT&T SOFTWARE PRODUCT
outside the United States, and LICENSEE hereby releases and
discharges AT&T from any and all claims resulting from such
use.
14.2. The obligations of this Section 14. shall survive termination of this
Agreement.
15. SUPPORT
Except as may otherwise be expressly provided in this agreement or in
another written agreement signed by both parties, AT&T is not obligated
to provide support, assistance, information, or DOCUMENTATION for its
SOFTWARE PRODUCTS to any person, including LICENSEE.
16. CONFIDENTIALITY AND USE
16.1. LICENSEE shall hold all parts of the AT&T SOURCE SOFTWARE subject to
this Agreement in confidence for AT&T during the term of this Agreement,
and if this Agreement is terminated for any reason, for a period
extending five years beyond LICENSEE's return or certified destruction
of AT&T SOURCE SOFTWARE. LICENSEE further agrees that it shall not make
any disclosure of any or all of such all copies AT&T SOURCE SOFTWARE
(including methods or concepts utilized therein) to anyone, except to
employees and contractors of LICENSEE to whom such disclosure is
necessary for the uses for which rights are granted hereunder. LICENSEE
shall appropriately notify each employee and contractor to whom any such
disclosure is made that such disclosure is made in confidence and shall
be kept in confidence by such employees and contractor.
16.2. Notwithstanding anything to the contrary herein, neither party shall
have the obligation to preserve the confidentiality of any information
if such information:
16.2.1. was previously known to the receiving party free of any
obligation to keep it confidential as evidenced by
documentation in such party's possession; or
16.2.2. is or becomes publicly available by other than unauthorized
disclosure by the receiving party; or
16.2.3. is developed by or on behalf of the receiving party
independent of this Agreement; or
16.2.4. is received by the receiving party from a third party whose
disclosure does not violate any confidentiality obligation with
the disclosing party, or with that party; or
16.2.5. is approved for release by written authorization by the
disclosing party; or
16.2.6. is lawfully required for use by a governmental agency or in a
court proceeding, or must be disclosed by operation of law.
16.3. LICENSEE agrees that it will not use AT&T SOURCE SOFTWARE subject to
this Agreement except as authorized herein and that it will not make,
have made, or permit to be made any copies
AT&T CONFIDENTIAL
17
June 3, 1997 AGREEMENT NO.: SA-_____
Software Agreement. Page 14 of 15
of such AT&T SOURCE SOFTWARE except for use at DESIGNATED SITES for such
AT&T SOURCE SOFTWARE (including backup and archive copies necessary in
connection with such use). Each such copy shall contain any copyright
notice, proprietary notice, or notice giving credit to another developer,
which appears on or in the AT&T SOURCE SOFTWARE being copied. Specific
instructions regarding such notices may also appear in the Exhibits of
the Supplement for certain AT&T SOURCE SOFTWARE.
17. MISCELLANEOUS
17.1 This Agreement shall prevail notwithstanding any conflicting terms or
legends which may appear in an AT&T SOFTWARE PRODUCT.
17.2. Neither this Agreement nor any rights hereunder, in whole or in part,
shall be assignable or otherwise transferable by either party, and any
purported assignment or transfer shall be null and void. The foregoing
shall not apply to assignments to SUBSIDIARIES of the parties to this
Agreement, nor to assignments in connection with a party's transfer of
all or a substantial portion of its assets, product lines, or
businesses, or by reason of acquisition, merger, consolidation, or
operation of law; however, the party assigning this Agreement under this
sentence shall promptly communicate the assignment to the other party in
a written notice.
Unless otherwise provided in Supplements or Exhibits to this Agreement,
no right is granted herein to either party to this Agreement to use any
identifying ▇▇▇▇ (such as, but not limited to, trade names, trademarks,
trade devices, service marks, or symbols, and abbreviations,
contractions, or simulations thereof) owned by, or used to identify any
product or service of, the other party. Except as is otherwise provided
by law, the parties agree that they will not, without the prior written
permission of the other party, (i) use any such identifying ▇▇▇▇ in
advertising, publicity, packaging, labeling, or in any other manner to
identify any of its products or services or (ii) represent, directly or
indirectly, that any product or service of the other party is a product
or service of such party or is made in accordance with or utilizes any
information or DOCUMENTATION of the other party.
17.4.Neither party shall be liable to the other for delays in performing
under this Agreement if the delay is caused by shortage of labor,
strike, lockout, default or failure of suppliers, riot, war, government
action, law, or regulation, act of God, fire, flood, or other cause
beyond the party's reasonable control.
17.5. Correspondence with AT&T relating to this Agreement shall be sent to:
AT&T Corp. Network Software OEM Business Development Manager Room 2A361
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
17.6. Payments in United States dollars and reports to AT&T shall be made to:
AT&T
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Reference Account Number: Direct wire payment may be made to:
AT&T
First National Bank of Chicago
AT&T CONFIDENTIAL
18
June 3, 1997 AGREEMENT NO.: SA ______
Software Agreement. Page 15 of 15
MIBS Acct: 51-09272
Account Number:
ABA Number ▇▇▇▇▇▇▇▇▇
17.7. Correspondence with LICENSEE relating to this Agreement shall be sent
to:
General Counsel,
Auspex Systems
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
17.8. Any statement, notice, request, or other communication shall be deemed
to be sufficiently given to the addressee, and any delivery hereunder
deemed made, when sent by certified mail addressed to LICENSEE at its
off ice in Section 17.7. or to AT&T at its offices specified in Section
17.5. Each party to this Agreement may change an address relating to it
by written notice to the other party.
17.9. This Agreement shall not be construed to limit either parties right to
obtain services or software programs from other sources, to prohibit or
restrict either party from independently developing or acquiring
competitive materials, or to restrict either party from making, having
made, using, leasing, licensing, selling or otherwise disposing of any
products or services whatsoever, nor is either party's right to deal
with any other vendors, suppliers, contractors or customers limited
hereby. The foregoing sentence shall not be construed as an implied
license under any patent, copyright, or other intellectual property
right of any party.
17.10. This Agreement shall be governed by the rules and laws of the State of
California. LICENSEE and AT&T agree to submit any dispute or controversy
arising out of or relating to this Agreement to nonbinding mediation to
be held in accordance with the Commercial Mediation Rules of the
American Arbitration Association. This Section 17.10. will not apply to
any issues of intellectual property. LICENSEE and AT&T agree that their
participation in a mediation and the entire mediation proceeding,
including but not limited to all statements, discussions, conduct,
rulings, findings, or determinations in that mediation proceeding or
relating to it, will be confidential, will constitute settlement
negotiations under Rule 408 of the Federal Rules of Evidence, and will
not be admissible in any proceeding or action of any kind, and that
neither party will introduce or attempt to introduce the above in any
other proceeding or action. The parties agree to perform whatever steps
are necessary to ensure that each mediation proceeding complies with
this Section 17.10.
17.11. If any section or subsection of this Agreement or any Supplement or
Exhibit is found by competent judicial authority to be invalid, illegal,
or unenforceable in any respect, then that section or subsection in
every other respect, and the remainder of this Agreement and its
Supplements and Exhibits, shall continue in effect if the Agreement and
its Supplements and Exhibits still express the intent of the parties as
of the EFFECTIVE DATE. If that intent cannot be preserved, this
Agreement and its Supplements and Exhibits shall be either re negotiated
or terminated.
AT&T CONFIDENTIAL
19
June 3, 1997 AGREEMENT NO.: SA_____
Page 1 of 1
Licensee:
Agreement Number:
Supplement Number: 01
SUPPLEMENT 01
TO SOFTWARE LICENSING AGREEMENT
BETWEEN LICENSEE & AT&T
1 For purposes of this Supplement 01, AT&T SOURCE SOFTWARE means the
VERSION RELEASES of the SERVER Advanced Server for UNIX V4.X.
2. For purposes of this Supplement 01, the porting environments for the
AT&T SOURCE SOFTWARE shall be:
[ *** ]
3. For the purposes of this Supplement 01 and attached Exhibit 1 -A, AT&T
and Licensee agree that:
[ *** ]
[ *** ]
4. For the purposes of this Supplement 01, the Designated CPU shall be:
CPU Serial Number:
5. For the purposes of this Supplement 01, DESIGNATED SITES for the AT&T
SOURCE SOFTWARE means:
SITE ADDRESS ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6. Use of the products at the DESIGNATED SITES shall be subject to the
terms and conditions of the above referenced Agreement. Exhibits of fees
and conditions for the use of such products are attached to and
incorporated into this Supplement.
7. This Supplement 01 and Exhibit 1A are attached to and made a part of
the above referenced Agreement. Execution and acceptance of such
Agreement also constitutes execution and acceptance of this Supplement
and Exhibit.
[ *** ] - Material omitted here, and filed separately with the Securities and
Exchange Commission, pursuant to a confidential treatment request.
AT&T CONFIDENTIAL
20
06/03/97 3:41 PM AGREEMENT NO.: SA ______
Page 1 of 2
EXHIBIT 1 -A
SCHEDULE FOR
AT&T ADVANCED SERVER FOR UNIX @ SYSTEMS
1. FEES
1. 1. Right-to-use fees for each AT&T SOFTWARE PRODUCT
1.1.1. Initial DESIGNATED CPU [ *** ]
1.1.2. Second DESIGNATED CPU [ *** ]
1.1.3. Third and Subsequent [ *** ]
1.2. Binary Distribution fees UNLIMITED KITS ("KIT") which is the
DERIVED BINARY PRODUCT
1.2.1. Binary Distribution Fee per KIT (KIT fee):
CLASS: UNLIMITED KIT FOR HOST PROCESSOR
CUMULATIVE SHIPMENT (UNITS) ROYALTY MINIMUM
0 to 5000 [ *** ]
5001 to 10,000 [ *** ]
10,001 to 15,000 [ *** ]
15,001 to 20,000 [ *** ]
1.3. For purposes of Section 1.2. an UNLIMITED KIT means a KIT
configured so that one (1) Advanced Server for UNIX BINARY Server
running on SUNOS or Solaris based Host Processor in an Auspex
server system supports an unlimited number of concurrent clients.
1.4. The KIT fees due from LICENSEE for the KIT to AT&T shall be equal
to [ *** ].
1.5. In-place upgrades from one class of users to another are allowed,
as long as the LICENSEE timely pays AT&T the appropriate difference
between the initial Binary Distribution fee and the new Binary
Distribution fee.
1.6. The royalty for in-place upgrades between updates (as designated by
the digit to the right of the decimal point) will be [ *** ]. Such
kits will be identified on the quarterly reports.
[ *** ] - Material omitted here, and filed separately with the Securities and
Exchange Commission, pursuant to a confidential treatment request.
21
2. DESIGNATIONS & ASSOCIATED TRADEMARKS FOR X-CLIENT Advanced Server for
UNIX BINARY KITS
06/03/97 3:41 PM AGREEMENT NO.: SA ______
Page 2 of 2
2.1. When the KIT is sold as a separate product (Unbundled), LICENSEE
must use a designation selected in accordance with the following:
2.1.1. The KIT designation contains "Advanced Server Version X for
(operating system] (where X designates the corresponding
release of AT&T's Advanced Server for UNIX Systems), or any
other designation mutually agreed to by both parties; and
2.1.2. When the initial screen pops up in the BINARY PRODUCT,
LICENSEE states prominently that its KIT "is", "is based
on" or "incorporates" AT&T's Advanced Server for UNIX
System. ("Compatible with", "derived from", or the like
wording does NOT satisfy this requirement); and
2.1.3. On the outside of the KIT packaging, LICENSEE states
prominently that its KIT "is", "is based on" or,
"incorporates" AT&T's Advanced Server for UNIX Systems.
("Compatible with", "derived from", or the like wording
does NOT satisfy this requirement); and
2.1.4. In all KIT documentation, collateral materials, press
releases and advertisements, on the same page and with
reference to the first use of LICENSEE'S KIT designation,
LICENSEE indicates in the text or by footnote that their
KIT "is", "is based on" or "incorporates", AT&T's Advanced
Server for UNIX Systems. ("Compatible with", "derived
from", or the like wording does NOT satisfy this
requirement).
2.2. When the KIT is sold as part of another product, or will in no way
be identified as a separate product from a larger integrated
product (Bundled) LICENSEE must use a designation selected in
accordance with the following:
2.2.1. When the initial screen pops up in the BINARY PRODUCT,
LICENSEE states prominently that its KIT "is", "is based
on" or "incorporates" AT&T's Advanced Server for UNIX
Systems. ("Compatible with", "derived from", or the like
wording does NOT satisfy this requirement); and
2.2.2. In all product documentation LICENSEE indicates in the text
or by footnote that their KIT "is", "is based on" or
"incorporates", AT&T's Advanced Server for UNIX Systems.
("Compatible with", "derived from", or the like wording
does NOT satisfy this requirement).