LICENSE AGREEMENT FOR COMPUTER
SOFTWARE PACKAGE
Contract # TERAGLOBAL-98-1
This Agreement is made and entered into and effective as of November 19, 1998
(the "EFFECTIVE DATE") between Mentat Inc., a California corporation having a
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ("MENTAT"), and TeraGlobal Communications Corporation, a Wyoming
corporation having a principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("LICENSEE").
1. DEFINITIONS
(a) "ADDENDUM" means an attachment to this Agreement describing ORIGINAL
SOFTWARE licensed to LICENSEE by this Agreement and the particular
terms associated with that ORIGINAL SOFTWARE.
(b) "LICENSEE SITE" means those buildings owned or leased by LICENSEE
which are used by LICENSEE for development and testing of PRODUCTS.
(c) "CONFIDENTIAL SOURCE CODE" means any portion of the human readable
source code of LICENSED SOFTWARE.
(d) "ORIGINAL SOFTWARE" means source and object code versions of MENTAT
software, provided by MENTAT, as identified in an ADDENDUM, executed
by both parties, and all enhancements, updates and bug fixes provided
to LICENSEE by MENTAT, together with supporting documentation as
described in each ADDENDUM.
(e) "DERIVATIVE SOFTWARE" means ORIGINAL SOFTWARE as modified by LICENSEE.
(f) "LICENSED SOFTWARE" means both ORIGINAL SOFTWARE and any ORIGINAL
SOFTWARE contained in DERIVATIVE SOFTWARE.
(g) "PRODUCTS" means the equipment or software programs utilizing the
OPERATING SYSTEM that are manufactured or marketed and distributed by
LICENSEE as a standard item available to customers of LICENSEE or to
the purchasing public.
(h) "SOURCE CODE FEE" means a one-time fee as described in Sections 2(a),
5(a) and each ADDENDUM.
(i) "SUPPORT FEE" means an annual fee as described in Section 6(b) and
each ADDENDUM.
(j) "ANNUAL PERIOD" means a period of one (1) year following the execution
of an ADDENDUM and each anniversary of such execution.
(k) "DISTRIBUTION FEE" means a per-copy fee as described in Sections 2(b),
5(b) and each applicable ADDENDUM.
(l) "OPERATING SYSTEM" means the operating system or systems described in
each ADDENDUM.
2. LICENSE
(a) Subject to the payment of the applicable SOURCE CODE FEE in
Section 5(a) and each ADDENDUM, and the terms and conditions of this
Agreement, MENTAT hereby grants to LICENSEE a non-transferable and
non-exclusive license to use, copy and display ORIGINAL SOFTWARE and
to modify ORIGINAL SOFTWARE into DERIVATIVE SOFTWARE, and to use, copy
and display such DERIVATIVE SOFTWARE, and to integrate ORIGINAL
SOFTWARE and DERIVATIVE SOFTWARE with LICENSEE'S own proprietary
software; provided that all of the foregoing activities shall be only
for the purpose of development and testing PRODUCTS located within
LICENSEE SITES.
(b) Subject to the payment of the applicable DISTRIBUTION FEE in
Section 5(b) and each ADDENDUM and the terms and conditions of this
Agreement, MENTAT hereby grants to LICENSEE a non-transferable and
non-exclusive binary license to use, perform, display, reproduce and
sublicense the object code portion ("Binary Copies") of LICENSED
SOFTWARE to its customers for use solely on PRODUCTS.
(c) In conjunction with the licenses granted in Section 2(b), MENTAT
hereby grants to LICENSEE a non-transferable and non-exclusive license
to use, modify, reproduce, and distribute non-confidential portions of
the documentation supplied to LICENSEE with the ORIGINAL SOFTWARE for
the purpose of creating LICENSEE'S user manuals. LICENSEE agrees
that, at least thirty (30) days prior to distribution of any manuals
containing such documentation, that LICENSEE will provide the manuals
to MENTAT for their review.
3. CONFIDENTIALITY
(a) Except and to the extent provided in Section 3(b) below, LICENSEE
agrees not to allow any portion of the CONFIDENTIAL SOURCE CODE, or
any trade secrets or confidential information pertaining to such
CONFIDENTIAL SOURCE CODE to be disclosed, reproduced or otherwise used
except in accordance with Section 2(a) or for archival or backup
purposes at LICENSEE SITES.
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(b) The undertakings and obligations of LICENSEE under this Section will
not apply, however, to any information which:
i. was in LICENSEE'S rightful possession before receipt from MENTAT
as can be demonstrated by LICENSEE'S records in existence before
receipt of the information from MENTAT;
ii. is or becomes a matter of public knowledge through no fault of
LICENSEE;
iii. is rightfully received by LICENSEE from a third party without a
duty of confidentiality;
iv. is independently developed by LICENSEE without reference to
MENTAT'S confidential information; or
v. is approved f or release by written authorization of MENTAT.
(c) LICENSEE shall not knowingly permit anyone to use any portion of
LICENSED SOFTWARE for purposes other than as authorized by this
Agreement. In the event LICENSEE becomes aware that LICENSED SOFTWARE
licensed or sublicensed under this Agreement is being used in an
unauthorized manner, LICENSEE shall immediately notify MENTAT in
writing of such facts and agrees to use reasonable efforts to have
such unauthorized use immediately terminated.
(d) LICENSEE agrees, and agrees to instruct its employees and authorized
contractors having access to LICENSED SOFTWARE, not to provide,
disclose or otherwise make available the CONFIDENTIAL SOURCE CODE of
LICENSED SOFTWARE, in whole or in part, to any person outside of
LICENSEE'S organization without the prior written approval of MENTAT.
(e) LICENSEE will ensure that all copies of LICENSED SOFTWARE reproduced,
sublicensed and delivered under this Agreement include in human
readable format any and all appropriate confidential, proprietary and
copyright notices and markings contained on the ORIGINAL SOFTWARE
provided by MENTAT.
(f) LICENSEE acknowledges and agrees that in the event of an unauthorized
reproduction, disclosure or use of the LICENSED SOFTWARE, or any trade
secrets or confidential information of MENTAT, MENTAT will not have an
adequate remedy at law, and therefore will be entitled to injunctive
or other equitable relief to restrain such reproduction, disclosure or
use, whether actual or threatened.
(g) The provisions of this Section 3 shall survive the termination or
expiration of this Agreement.
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4. OWNERSHIP
(a) LICENSEE acknowledges that LICENSED SOFTWARE is the property of MENTAT
and contains valuable trade secrets and confidential information
proprietary to MENTAT. Unless assigned as set forth in
Section 4(b) below, Licensee shall own all right, title and interest
to all DERIVATIVE SOFTWARE, exclusive of the ORIGINAL SOFTWARE.
(b) For all bug fixes, corrections, or other modifications to the ORIGINAL
SOFTWARE which are provided by LICENSEE to MENTAT at LICENSEE'S sole
option and that MENTAT in its sole discretion decides to incorporate
into ORIGINAL SOFTWARE, LICENSEE hereby grants and assigns to MENTAT
all right, title and interest in and to such bug fixes, corrections,
or other modifications to the ORIGINAL SOFTWARE and all copyrights and
other intellectual property rights therein, together with all rights
arising from such copyright ownership. LICENSEE agrees to do and
cause to be done all matters and things as it may reasonably and
lawfully be required to do to secure to MENTAT the full use and
enjoyment of said copyright ownership, and without compensation.
(c) The LICENSED SOFTWARE is a commercial product developed solely at the
private expense of MENTAT. If the LICENSED SOFTWARE is used by, or
licensed to, any United States Government agency, whether military or
civilian, such use, reproduction, release, modification or disclosure
("use") of the LICENSED SOFTWARE, or any part thereof, including
related technical data, is restricted in accordance with Federal
Acquisition Regulation ("FAR") 12.212 for civilian agencies and
Defense Federal Acquisition Regulation Supplement ("DFARS") 227.7202
for military agencies. Such use is further restricted as set forth in
this Agreement or any ADDENDUM hereto.
5. LICENSE FEES
(a) In consideration of the source code license rights granted by MENTAT
to LICENSEE in Section 2(a) for the LICENSEE SITE, LICENSEE agrees to
pay SOURCE CODE FEES to MENTAT as stated in each ADDENDUM. SOURCE
CODE FEES are due upon execution of each ADDENDUM.
(b) In consideration of the binary redistribution rights granted by MENTAT
to LICENSEE in Section 2(b), LICENSEE agrees to pay DISTRIBUTION FEES
to MENTAT as stated in each ADDENDUM.
i. Within thirty (30) days after each calendar quarter LICENSEE
shall send to MENTAT a report setting forth LICENSEE'S number of
copies of the LICENSED
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SOFTWARE distributed by LICENSEE during the preceding calendar
quarter for which a royalty fee is due, a computation of
royalties due, and payment of royalties due, in U.S. currency.
The first such royalty report shall be due within thirty (30)
days after June 30, 1999 and shall set forth LICENSEE'S number of
copies of the LICENSED SOFTWARE distributed by LICENSEE for the
period from the Effective Date of this Agreement through June 30,
1999 for which a royalty fee is due, a computation of royalties
due, and payment of royalties due, in U.S. currency.
ii. LICENSEE agrees that it will maintain records of production and
disposition of all copies of LICENSED SOFTWARE subject to
royalty. LICENSEE further agrees that it will, at MENTAT'S
expense, permit a mutually agreed upon certified public
accountant to have reasonable access, at a time mutually agreed
to during LICENSEE'S normal business hours, to audit on an annual
basis, LICENSEE'S records and books of account which solely
relate to production and disposition of copies of LICENSED
SOFTWARE subject to royalty, for the purpose of determining
whether the appropriate royalties have been paid to MENTAT.
Should such examination result in LICENSEE'S obligation to pay
additional royalties, LICENSEE shall pay to MENTAT such royalties
immediately with accrued interest as specified in
Section 5(c) below. Should such examination result in LICENSEE'S
obligation to pay additional royalties exceeding three percent
(3%) of the royalties paid by LICENSEE for the period examined,
Licensee shall also pay the costs and expenses accrued in
connection with such examination.
(c) All payments under this Agreement are payable thirty (30) days after
receipt by LICENSEE of an invoice from MENTAT. Any payments which are
past due shall accrue interest starting from the due date at a rate of
the lesser of (1) 1.5% per month; or (2) the maximum interest rate
allowed under law.
(d) All fees under this Agreement are exclusive of any applicable sales or
use tax.
6. SUPPORT AND TRAINING
(a) MENTAT agrees to support the ORIGINAL SOFTWARE at no additional charge
to LICENSEE for six (6) months following delivery.
(b) In consideration of the SUPPORT FEES as set forth in each ADDENDUM,
MENTAT agrees to support ORIGINAL SOFTWARE for the term of this
Agreement. For the purposes of these rights, each annual period will
start six (6) months following the execution of an ADDENDUM. SUPPORT
FEES will be invoiced thirty (30) days prior to the beginning of each
annual period for the entire annual period. LICENSEE will
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notify MENTAT in writing ninety (90) days prior to the end of any
succeeding annual period if LICENSEE chooses to discontinue support.
(c) Support consists of consultation via telephone, electronic mail, or
fax for up to five (5) of LICENSEE'S technical representatives, and
any new versions, bug fixes, or enhancements made by MENTAT to the
ORIGINAL SOFTWARE during the term of this Agreement.
(d) If LICENSEE requests and MENTAT agrees to provide on-site support,
LICENSEE agrees to pay a reasonable consulting fee as well as travel,
meal, and lodging expenses of Mentat personnel for such on-site
support.
7. TERM AND TERMINATION
(a) This Agreement shall terminate:
i. thirty (30) days after written notice by either party, in the
event of any default by the other party of any material term,
covenant or obligation under this Agreement not cured during such
thirty (30) day period; or
ii. immediately upon MENTAT'S election, if a receiver, liquidator,
trustee or like official is appointed for LICENSEE or any
substantial portion of its property or if LICENSEE shall have
filed or consented to any petition in bankruptcy or other
insolvency proceedings or shall have made any assignment for the
benefit of creditors; or
iii. immediately upon LICENSEE'S election, if a receiver, liquidator,
trustee or like official is appointed for MENTAT or any
substantial portion of its property or if MENTAT shall have filed
or consented to any petition in bankruptcy or other insolvency
proceedings or shall have made any assignment for the benefit of
creditors; or
iv. immediately if pursuant to the option exercised by MENTAT under
Section 9(c).
(b) In the event that LICENSEE is able to terminate this Agreement for
MENTAT'S breach or for reasons described in 7(a)iii, LICENSEE will
have any one of the following options:
i. LICENSEE may terminate this Agreement immediately, subject to
LICENSEE'S compliance with the provisions of Section 7(c); or
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ii. LICENSEE may retain and continue to exercise the license rights
granted to it hereunder, subject to compliance by LICENSEE with
the remaining terms and conditions of the Agreement including
payment of DISTRIBUTION FEES and SOURCE CODE FEES except that
LICENSEE will no longer be obligated to pay the SUPPORT FEES and
MENTAT will no longer be obligated to provide such support and
maintenance.
(c) Upon termination by MENTAT for LICENSEE'S material breach or for upon
termination by LICENSEE under Section 7(b)i, all rights granted by
MENTAT to LICENSEE shall terminate. The following conditions shall
apply on termination:
i. LICENSEE shall discontinue use of LICENSED SOFTWARE and shall
either deliver to MENTAT or destroy all LICENSED SOFTWARE, and
any related materials furnished by MENTAT, together with all
copies thereof;
ii. LICENSEE shall erase or destroy any part of LICENSED SOFTWARE
contained in computer memory or data storage apparatus under the
control of LICENSEE;
iii. LICENSEE shall warrant in writing to MENTAT within thirty (30)
days of termination that LICENSED SOFTWARE, related materials and
all copies thereof have either been returned to MENTAT or
destroyed and erased from computer memory or data storage
apparatus.
(d) Notwithstanding termination of this Agreement for any reason, any
license granted under this Agreement by LICENSEE prior to the date of
termination shall remain in full force and effect.
8. LIMITED WARRANTY, DISCLAIMER AND LIMITATION OF LIABILITY
(a) MENTAT represents and warrants that LICENSED SOFTWARE will perform
substantially as described in the documentation listed in the ADDENDUM
describing the LICENSED SOFTWARE and current as of the date of
delivery of such LICENSED SOFTWARE to LICENSEE.
(b) EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH ABOVE AND IN
SECTION 9, LICENSED SOFTWARE IS PROVIDED ON AN AS-IS BASIS. EXCEPT AS
SET FORTH IN SECTION 9, MENTAT HEREBY DISCLAIM AND LICENSEE HEREBY
EXPRESSLY WAIVES, ANY AND ALL EXPRESS WARRANTIES OR REPRESENTATIONS OF
ANY KIND OR NATURE, AND ANY AND ALL IMPLIED WARRANTIES, INCLUDING, BUT
NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
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(c) THE PARTIES HEREBY AGREE THAT LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR
BREACH OF ANY WARRANTIES HEREIN IS THE REPAIR AND/OR REPLACEMENT OF
ANY DEFECTIVE SOFTWARE. IF FOR ANY REASON MENTAT IS UNABLE TO REPAIR
OR REPLACE ANY DEFECTIVE SOFTWARE WITHIN A COMMERCIALLY REASONABLE
TIME PERIOD, LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY
WARRANTIES HEREIN IS THE REFUND OF THE SOURCE CODE FEES PREVIOUSLY
PAID BY LICENSEE TO MENTAT.
(d) EXCEPT WITH RESPECT TO ANY BREACH OF SECTIONS 2 OR 3 BY LICENSEE IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFIT)
IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT WHETHER BASED
UPON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY. IN ADDITION,
MENTAT'S TOTAL LIABILITY TO LICENSEE FOR DIRECT DAMAGES ARISING OUT OF
OR RELATING TO THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL
AMOUNT OF THE FEES ACTUALLY PAID BY LICENSEE TO MENTAT UNDER THIS
AGREEMENT.
9. PATENT AND COPYRIGHT INDEMNIFICATION
(a) MENTAT represents and warrants that it has sufficient right, title and
interest in and to the LICENSED SOFTWARE to enter into this Agreement
and further warrants that it is not aware that the LICENSED SOFTWARE
infringes any patent, copyright, or trade secret belonging to a third
party in any country and that it has not been notified by a third
party of a possibility that the LICENSED SOFTWARE might infringe any
patent, copyright or other proprietary right of a third party. Each
of MENTAT'S employees, consultants, contractors, partners or agents
who has been or will be involved in the development of the ORIGINAL
SOFTWARE will have signed an agreement with MENTAT conveying all
proprietary rights in the ORIGINAL SOFTWARE to MENTAT and agreeing to
maintain in confidence all trade secrets embodied in the ORIGINAL
SOFTWARE. MENTAT represents and warrants that it has full power to
enter into this Agreement, to carry out its obligations under this
Agreement and to grant the rights granted to LICENSEE.
(b) MENTAT agrees at its expense to defend and indemnify LICENSEE in any
suit, claim or proceeding brought against LICENSEE alleging that
ORIGINAL SOFTWARE infringes a U.S. patent or a copyright in any
country, or violates a trade secret right of a third party; provided,
however that LICENSEE (1) notifies MENTAT promptly in writing of such
suit, claim or proceeding, (2) gives MENTAT full control of the
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defense of such suit, claim, or proceeding and full information and
assistance to defend such suit, claim or proceeding and (3) allows
MENTAT to pay any judgment of a court; provided that MENTAT shall have
no liability for settlements or costs incurred without its consent.
MENTAT shall have no liability to indemnify LICENSEE in any suit,
claim or proceeding brought against LICENSEE to the extent the
infringement or violation arises from the use of (1) altered ORIGINAL
SOFTWARE as originally supplied by MENTAT and such infringement or
violation would have been avoided if LICENSEE had used unaltered
ORIGINAL SOFTWARE as originally supplied, (2) non-licensed software
with LICENSED SOFTWARE and the claim for such infringement or
violation would have been avoided if such non-licensed software had
not been used.
(c) If LICENSEE'S use of ORIGINAL SOFTWARE is enjoined, or in the event
that MENTAT desires to minimize its liabilities hereunder, MENTAT
will, at its option, either, (1) substitute other equally suitable
software, or (2) modify ORIGINAL SOFTWARE so that it no longer is an
infringement or violation, or (3) obtain for LICENSEE the right to
continue its use. If none of the foregoing is reasonably available,
then MENTAT may terminate this Agreement upon thirty (30) days written
notice to LICENSEE. Upon satisfaction by LICENSEE of the conditions
set forth in Section 7(c), after termination by MENTAT in accordance
with this Section 9, MENTAT shall refund the pro-rated SOURCE CODE FEE
and pro-rated DISTRIBUTION FEES paid by LICENSEE to MENTAT under this
Agreement, based on the number of days remaining in a five year life.
(d) THE OBLIGATION OF MENTAT UNDER THIS SECTION 9 SHALL BE THE SOLE AND
EXCLUSIVE REMEDY OF LICENSEE IN THE EVENT OF ANY SUIT, CLAIM OR
PROCEEDING BROUGHT AGAINST LICENSEE ALLEGING THAT THE LICENSED
SOFTWARE INFRINGES ANY PATENT OR COPYRIGHT OR VIOLATES A TRADE SECRET
RIGHT OF A THIRD PARTY. ALL OTHER LIABILITIES OR OBLIGATION OF MENTAT
FOR DAMAGES INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL AND
INCIDENTAL DAMAGES ARE SPECIFICALLY DISCLAIMED.
10. ENTIRE AGREEMENT
(a) This Agreement is the entire agreement between the parties pertaining
to this subject matter and supersedes all proposals or prior and
contemporaneous agreements or understandings of the parties regarding
such matter. Terms and conditions contained in any LICENSEE purchase
order or other ordering document or MENTAT acknowledgment or invoice
submitted pursuant hereto shall have no binding effect on either party
and will not modify this Agreement in any way.
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11. MISCELLANEOUS
(a) This Agreement shall not be binding on either party until accepted and
executed by each such party.
(b) No delay or failure of either party to exercise any right or remedy
will operate as a waiver thereof. No waiver of any of the provisions
of this Agreement for a particular situation shall be deemed or
constitute a permanent waiver of such provision for any other
situation nor shall such waiver constitute a continuing waiver for the
same situation if it should recur.
(c) Modification of this Agreement shall not be valid unless in writing
and signed by duly authorized representatives of both parties.
(d) This Agreement shall be construed in accordance with and governed by
the laws of the State of California without reference to conflicts of
laws provisions.
(e) The parties hereto agree not to disclose, advertise, or make known the
terms of this Agreement except; (A) with the other party's prior
written consent; or (B) to existing or potential bankers, investors,
attorneys, accountants, or similar agents; or (C) as may be required
by law or by the order of a court of competent jurisdiction.
(f) LICENSEE shall not export, re-export, or transfer directly or
indirectly LICENSED SOFTWARE to any country for which the United
States government requires exporters to obtain an export license or
other government approval at the time of export, re-export or
transfer, unless prior written authorization is obtained from MENTAT
and the appropriate governmental agencies.
(g) Other than failure to make payments when they are due, neither party
will be liable for any failure or delay in its performance under this
Agreement due to causes, including, but not limited to, acts of God,
acts of civil or military authority, fire, epidemic, flood,
earthquake, riot, war, sabotage, labor shortages or disputes, and
governmental actions, which are beyond its reasonable control,
provided that the delayed party: (i) gives the other party written
notice of such cause promptly, and in any event within fifteen (15)
days of discovery thereof; and (ii) uses its reasonable efforts to
correct such failure or delay in its performance. The delayed party's
time for performance or cure under this Section 11(g) will be extended
for a period equal to the duration of the cause or thirty (30) days,
whichever is less.
(h) The rights and liabilities of the parties hereto will bind and inure
to the benefit of their respective successors, executors and
administrators, as the case may be;
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provided that neither party may assign its rights or delegate its
obligations under this Agreement either in whole or in part, without
the prior written consent of the other party, except in the case of a
sale of all or substantially all of the assets or a controlling share
of the stock of the assigning party. Any attempted assignment in
violation of the provisions of this Section 11(h) will be void.
(i) If for any reason a court of competent jurisdiction finds any
provision of this Agreement, or portion thereof, to be unenforceable,
that provision of the Agreement will be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the
remainder of this Agreement will continue in full force and effect.
(j) All notices required or permitted under this Agreement will be in
writing, will reference this Agreement and will be deemed given when:
(i) delivered personally; (ii) when sent by confirmed telex or
facsimile; (iii) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; or (iv) one
(1) day after deposit with a commercial overnight carrier, specifying
next-day delivery, with written verification of receipt. All
communications will be sent to the addresses set forth below to or
such other address as may be designated by a party by giving written
notice to the other party pursuant to this Section 11(j):
LICENSEE: MENTAT:
TeraGlobal Communications Corp. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President Attn: President
(k) This Agreement may be executed in one or more counterparts, each of
which will be deemed an original, but which collectively will
constitute one and the same instrument.
(l) The headings and captions used in this Agreement are used for
convenience only and are not to be considered in construing or
interpreting this Agreement.
(m) In the event of any dispute concerning or arising out of this
Agreement, such dispute shall be submitted by the parties to
arbitration. Arbitration proceedings may be commenced by either party
giving the other party written notice thereof and proceeding
thereafter in accordance with the rules and procedures of the American
Arbitration Association. Any such arbitration shall take place before
a single arbitrator only in San Diego, California. Any such
arbitration shall be governed by and subject to the applicable laws of
the State of California (including the discovery provisions of the
California Civil Code and the
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California Code of Civil Procedure, including specifically
Section 1283.05 of the California Code of Civil Procedure), and the
then prevailing rules of the American Arbitration Association. The
arbitrator's award in any such arbitration shall be final and binding,
and a judgment upon such award may be enforced by any court of
competent jurisdiction.
(n) If either party hereto commences an arbitration or other action
against the other party to enforce any of the terms hereof or because
of the breach by such other party of any of the terms hereof, the
prevailing party shall be entitled, in addition to any other relief
granted, to all actual out-of-pocket costs and expenses incurred by
such prevailing party in connection with such action, including,
without limitation, all reasonable attorneys' fees.
(o) Notwithstanding Sections 11(m) and 11(n), either party shall have the
right to obtain injunctive relief from a court of competent
jurisdiction.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
MENTAT INCORPORATED LICENSEE
By: /S/ ▇▇▇ ▇. ▇▇▇▇▇ By: /S/ ▇▇▇▇ ▇▇▇
---------------------------------- ----------------------------------
Name (Print): ▇▇▇ ▇. ▇▇▇▇▇ Name (Print): ▇▇▇▇ ▇▇▇
------------------------ ------------------------
Title: President Title: President
------------------------------- -------------------------------
Date: November 19, 1998 Date: November 19, 1998
-------------------------------- --------------------------------
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ADDENDUM A: MENTAT XTP
This Addendum to the License Agreement for Computer Software Package, dated
__________________, 1998 ("EFFECTIVE DATE") between MENTAT INC. and TeraGlobal
Communications Corporation is intended by the parties to add the software named
herein to the list of ORIGINAL SOFTWARE licensed to LICENSEE by MENTAT. The
specific terms applicable to the software named herein are stated in this
Addendum.
1. DESCRIPTION OF THE SOFTWARE
(a) Mentat XTP
2. OPERATING SYSTEM
Apple Macintosh Mac OS version 8.5, or other version as specified by mutual
written agreement. Compatibility with the MacOS X architecture is not
included and may require substantial engineering effort and/or licensing of
Mentat Portable Streams.
3. LICENSE FEES (Redacted)
4. DELIVERABLES
(a) Delivery by MENTAT to LICENSEE of the following Deliverables to be on
or before two months from the EFFECTIVE DATE of this ADDENDUM.
i. XTP engine: compatible with version 4.0 of the XTP Forum Xpress
Transport Protocol specification.
ii. Port specific files for the OPERATING SYSTEM including a full
build environment and configurators necessary for the
installation and configuration of Mentat XTP on the OPERATING
SYSTEM. Configurator design will be a configurator file with
minimal functionality to install and set-up Mentat XTP on the
OPERATING SYSTEM.
iii. Documentation:
- MENTAT XTP VOLUME 1: PROGRAMMER'S GUIDE.
- MENTAT XTP VOLUME 2: INTERNALS.
(b) MENTAT will modify Mentat XTP within three months of the EFFECTIVE
DATE of this ADDENDUM to add knobs for the server to control the
multicast group.
IN WITNESS WHEREOF, the parties have caused this Addendum to be execute their
duly authorized representatives.
MENTAT INCORPORATED LICENSEE
By: /S/ ▇▇▇ ▇ ▇▇▇▇▇ By: /S/ ▇▇▇▇ ▇▇▇
---------------------------------- ----------------------------------
Name (Print): ▇▇▇ ▇. ▇▇▇▇▇ Name (Print): ▇▇▇▇ ▇▇▇
------------------------ ------------------------
Title: President Title: President
------------------------------- -------------------------------
Date: November 19, 1998 Date: November 19, 1998
-------------------------------- --------------------------------
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CONFIDENTIAL DISCLOSURE
AGREEMENT
EFFECTIVE DATE:
---------------
In order to protect certain proprietary, confidential information which may be
disclosed between them, Mentat Inc., a California corporation ("Mentat") and
TeraGlobal Communications Corporation ("Participant"), agree that:
1. The Discloser(s) of confidential The Recipient(s) of confidential
information hereunder is (are): information hereunder is (are):
Both Parties Both Parties
-------------------------------------- --------------------------------
2. The parties' representatives for disclosing or receiving confidential
information are:
▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
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(Mentat) (Participant)
3. The confidential information disclosed under this Agreement is described
as:
(1) BUSINESS AND TECHNICAL INFORMATION AND DATA RELATING TO MENTAT'S PRODUCTS,
CUSTOMERS, AND BUSINESS PLANS, AND (2) BUSINESS AND TECHNICAL INFORMATION AND
DATA RELATING TO PARTICIPANT'S PRODUCTS, CUSTOMERS, AND BUSINESS PLANS.
MENTAT'S SOURCE CODE AND ANY TRADE SECRETS OR CONFIDENTIAL INFORMATION
PERTAINING TO SUCH SOURCE CODE SHALL BE COVERED BY THE TERMS OF A SEPARATE
AGREEMENT BETWEEN THE PARTIES, LICENSE AGREEMENT FOR COMPUTER SOFTWARE PACKAGE
TERAGLOBAL-98-1 DATED ____________________ 1998.
4. This Agreement covers only confidential information which is disclosed
between the effective date and the date of termination of this agreement.
5. A Recipient's obligations regarding confidential information received under
this Agreement expire five years from the date of termination of this
agreement.
6. A Recipient agrees to return all written documents received from the
Discloser containing confidential information immediately upon request of
the Discloser.
7. A Recipient shall protect the confidential information against unauthorized
disclosure using the same degree of care, but no less than a reasonable
degree of care, as the Recipient uses to protect its own confidential
information of a like nature.
8. The party receiving confidential information ("Recipient") shall make use
of the confidential information only for the following purpose:
Mentat: provide advice and Guidance regarding the use of LICENSED SOFTWARE
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Participant: design of Participant's products
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9. A Recipient shall be obligated to protect only such confidential
information disclosed under this Agreement as is: (a) disclosed in tangible
form clearly labeled as confidential at the time of disclosure, or
(b) disclosed initially in non-tangible form identified as confidential at
the time of disclosure and, within thirty days following the initial
disclosure, summarized and designated as confidential in a written
memorandum delivered to the Recipient's representative named in paragraph 2
above.
10. The Agreement imposes no obligation upon a Recipient with respect to any
confidential information disclosed under this Agreement which: (a) was in
the Recipient's possession before receipt from Discloser; (b) is or becomes
a matter of public knowledge through no fault of Recipient; (e) is
rightfully received by Recipient from a third party without a duty of
confidentiality; (d) is disclosed by Discloser to a third party without a
duty of confidentiality on the third party; (e) is independently developed
by Recipient; (f) is disclosed under operation of law; or (g) is disclosed
by Recipient with Discloser's prior written approval.
11. Each Discloser warrants that it has the right to make the disclosures under
the Agreement, and all such disclosures are at the sole discretion of the
Discloser. NO OTHER WARRANTIES ARE MADE BY EITHER PARTY UNDER THIS
AGREEMENT, ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED "AS
IS".
12. Neither party acquires any intellectual property rights under this
Agreement; neither party has an obligation under this Agreement to purchase
any service or item from the other party, or to deal exclusively with the
other party in any field; and neither party has an obligation under this
Agreement to offer for sale products using or incorporating the
confidential information. The Discloser may, at its sole discretion, offer
such products for sale and may modify them or discontinue sale at any time.
13. A Recipient shall adhere to the U.S. Export Administration Laws and
Regulations and shall not export or reexport any technical data or products
received from the Discloser or the direct products of such technical data
to any proscribed country listed in the U.S. Export Administration
Regulations unless properly authorized by the U.S. Government.
14. The parties do not intend that any agency or partnership relationship be
created between them by this Agreement.
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15. All additions or modifications to this Agreement must be made in writing
and must be signed by both parties. This Agreement is made under and shall
be construed according to the laws of the State of California.
16. Either party may terminate this Agreement at any time without cause upon
written notice to the other party. In the event this Agreement is
terminated, the receiving party shall promptly return or destroy (and
certify destruction of) all confidential information which it received from
the disclosing party along with all copies which it made.
17. Any other agreement between the parties shall not be affected by this
Agreement.
MENTAT INCORPORATED LICENSEE
By: /S/ ▇▇▇ ▇. ▇▇▇▇▇ By: /S/ ▇▇▇▇ ▇▇▇
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Name (Print): ▇▇▇ ▇. ▇▇▇▇▇ Name (Print): ▇▇▇▇ ▇▇▇
------------------------ ------------------------
Title: President Title: President
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Date: November 19, 1998 Date: November 19, 1998
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