Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
EXHIBIT 10.10
MASTER SOFTWARE LICENSE AGREEMENT (#ADAP001)
This MASTER SOFTWARE LICENSE AGREEMENT (this "Agreement"), number ADAP001, is
made, and is effective, as of December 4, 1999 ("Effective Date") by and between
HEWLETT-PACKARD COMPANY ("HP"), and ADAPTEC, INC. ("Licensor").
1. DEFINITIONS
1.1 "PROGRAM" shall mean Licensor's software program(s) listed
and described in a SOW attached hereto, including [*] and Enhancements
for such Programs delivered to HP on or after the Effective Date, and localized
versions available for such Programs.
1.2 "ENHANCEMENTS" shall mean all (1) updates, modifications,
new features, new functionalities or upgrades of a Program [*]
1.3 [*]
1.4 "SPECIFICATIONS" shall mean the functional specifications
of a Program as described in a SOW.
1.5 "GOLD BYTES" shall mean the master copy of a Program, in
object code form, and any additional software necessary to load such Program on
a HP Product, provided on the media described in a SOW.
1.6 "DOCUMENTATION" shall mean the manuals (including
technical manual) and other standard documentation that Licensor makes available
with a Program, listed and described in a SOW.
1.7 "COMPLETE COPY" of a Program shall include (i) Gold Bytes,
(ii) all Documentation and technical manuals for the Program in the form(s) and
on the media described in
-1-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
a SOW, and (iii) any other documentation and information regarding the Program
which HP reasonably requests to accomplish evaluation and use of the Program
as contemplated in this Agreement.
1.8 "PROGRAM PLUS" means additions to a Program, and any
changes to such Program required to make such additions function, licensed by
Licensor directly to end users.
1.9 "HP PRODUCT" shall mean the HP products described in a
SOW, which may be amended by the parties from time to time to include new
products.
1.10 "NEW RELEASE" shall mean a major upgrade or successor
version of a Program for which Licensor charges a separate license fee, and
which is designated by Licensor as a new release.
1.11 "PER COPY FEE" shall mean the amount set forth in a SOW
payable to Licensor by HP for the rights licensed herein.
1.12 "STATEMENT OF WORK" ("SOW") shall mean a document in the
form attached as Exhibit B describing the Division Specifications, Support,
other requirements such as Enhancements requested by HP, and the respective
obligations of the parties with respect thereto, as may be agreed upon by the
parties from time to time during the term of this Agreement.
2. DELIVERY AND ACCEPTANCE
2.1 DELIVERY. Licensor agrees to deliver to HP a Complete Copy
of the Program, no later than ten (10) days after the execution of this
Agreement or the applicable SOW, unless otherwise provided in such SOW.
2.2 ACCEPTANCE. HP shall have [*] days from the date of
receipt of a Complete Copy of the Program to evaluate the Program for conformity
with the Specifications, and either accept, or reject the Program. HP shall be
entitled to test and evaluate any Program by whatever means it deems appropriate
consistent with Licensor's fights in the Program. Licensor hereby grants to HP
any licenses necessary for HP to perform its evaluation. Subject to the
foregoing evaluation license grant, HP has the right to use third party
subcontractors to achieve the foregoing; provided, however, that any such
subcontractors will be parties to written agreements with HP containing
obligations no less restrictive than those in this Agreement. If HP identifies a
failure of a Program to meet the Specifications Licensor agrees to correct the
identified defects and resubmit the Program for re-evaluation under the same
acceptance procedure. In the event HP rejects a Program, it shall give Licensor
written notice of rejection stating the reasons for its unacceptability. No
payment shall be payable to Licensor until the Program has been accepted by HP
in writing or HP fails to reject the Program within such [*] day period.
2.3 ENHANCEMENTS. Licensor agrees to deliver to HP a Complete
Copy of any Enhancement within [*] days of its being released to
manufacturing by Licensor. HP shall have the right to test and evaluate the
Enhancement under the acceptance procedure described above.
-2-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
3. RIGHTS GRANTED AND RESTRICTIONS
3.1 LICENSE TO THE PROGRAM. Subject to the terms and
conditions set forth herein, Licensor hereby grants to HP, its subsidiaries,
divisions and affiliates a non-exclusive, worldwide license to use,
reproduce, display, and distribute the Program in object code format and as
bundled with a HP Product. Such license shall include the right of HP to
sublicense distributors, resellers, and other third parties to achieve the
foregoing. [*] All HP Products will be licensed to end users pursuant to
the HP Software License Terms, the current form of which is attached hereto
as EXHIBIT B.
3.2 LICENSE TO THE DOCUMENTATION. Subject to the terms and
conditions set forth herein, Licensor hereby grants to HP, its subsidiaries,
divisions and affiliates a non-exclusive, worldwide license to use, reproduce,
display, translate, distribute and modify and prepare derivative works or
compilations of the Documentation and modifications and derivative works and
compilations based thereon for use with a Program. Such license shall include
the right of HP to sublicense distributors, resellers, and other third parties
to achieve the foregoing. The right to modify and prepare derivative works and
compilations is granted solely for the purposes of combining Documentation of
more than one program, condensing Documentation, and formatting and preparing
Documentation for user accessibility.
3.3 LICENSE TO PHOTOGRAPH (MARKETING MATERIALS). Subject to
the terms and conditions set forth herein, Licensor hereby grants to HP, its
subsidiaries, divisions and affiliates a non exclusive, worldwide license to
photograph Program screen displays and packaging, the Documentation and the
CD-ROM, if any, and to use, reproduce, display and modify such photographs and
modifications thereto and images therefrom solely in connection with HP's
marketing of the Program. Such license shall include the right of HP to
sublicense distributors, resellers, and other third parties to achieve the
foregoing. This license is subject to HP's compliance with Licensor's marketing
and software-packaging guidelines (as provided by Licensor) and Section 3.6
("Trademarks") of this Agreement.
3.4 RESTRICTIONS. HP shall not reverse engineer, disassemble,
or otherwise modify any Program without written authorization from Licensor.
3.5 LOCALIZED VERSIONS. The licenses granted hereunder with
respect to a Program and associated Documentation shall include all localized
versions of such Program listed a SOW or made available by Licensor on or after
the Effective Date.
3.6 TRADEMARKS. Neither party is granted any right or interest
to the trademarks, marks or trade names (collectively, "Marks") of the other
party. Neither party may use the other's Marks without the prior written consent
of the other party. Notwithstanding the foregoing, Licensor agrees that: (1) HP
may use Licensor's name and the name and/or trademark of a Program ("Licensor
Program Marks") in the course of marketing and distributing such Program in
accordance with the terms and conditions of this Agreement provided that such
use is in accordance with Licensor's trademark usage guidelines as modified from
time-to time and supplied to HP; (3) HP acknowledges that nothing in this
Agreement gives HP right, title, or interest in Licensor
-3-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
Program Marks other than the right to use the Licensor Program Marks in
accordance with this Agreement; and (4) HP acknowledges that the use of
Licensor's Program Marks shall inure to the benefit of Licensor.
3.7 OWNERSHIP. Subject to the rights and licenses granted to
HP hereunder, Licensor retains all right, title and interest in the Programs,
Documentation, Gold Byte, and any Bug Fixes, and New Releases, including all
copyrights thereto. HP agrees that it will not remove any copyright notices,
trademarks or tradenames of Licensor from the Programs or Documentation.
3.8 COPYRIGHT NOTICES. Licensor and HP agree that mutually
acceptable copyright notices of Licensor shall be used for the Programs and any
localizations of the Programs.
4. PROGRAM MAINTENANCE AND SUPPORT
4.1 MAINTENANCE AND SUPPORT.
4.1.1 Licensor agrees to provide HP maintenance and
support for the Programs as set forth in a SOW. Licensor agrees to maintain such
number of qualified personnel as is necessary to provide such timely and
knowledgeable maintenance and support service.
4.1.2 Notwithstanding any termination of this
Agreement, Licensor agrees to maintain and support the Programs distributed
by HP for at least [*] months after a Program is made available to HP for
distribution hereunder. The version of a Program immediately preceding [*]
or New Release shall be supported and maintained by Licensor for [*] months
after the [*] or New Release is made available to HP for distribution
hereunder.
4.2 TECHNICAL ASSISTANCE AND TRAINING. Licensor agrees to
provide to HP the technical assistance and training to HP personnel as may be
reasonably requested for HP to use, copy and distribute the Program as
contemplated here, and as may be further described in a SOW.
4.3 NEW HP PRODUCTS. The parties intend that during the
term of this Agreement Licensor may design product changes and new product
releases which are compatible with future releases and revisions of the HP
Products [*]. Upon request by HP for a change or enhancement to the Program
pursuant to section 4.4 below Licensor agrees to [*] days (unless the
parties mutually agree otherwise).
4.4 FUNCTIONALITY ENHANCEMENTS. HP may from time to time
request significant functionality enhancements to a Program. If Licensor, in its
sole and absolute discretion, agrees to develop any such enhancements, the
parties shall enter into a mutually agreeable written SOW setting forth the
terms and conditions of the development of such enhancements, which may provide
for additional payments by HP to Licensor. The fee for any such enhancements
shall be [*]. Prior to commencing work, Licensor will provide HP with a written
estimate of the total "not to exceed" fee
-4-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
for the proposed enhancement and the final fee shall not exceed the estimate by
more than [*] unless mutually agreed to by HP and Licensor.
4.5 HP PROPERTY. HP may provide HP property to Licensor for
purposes related to this Agreement under the terms of an HP Equipment Loan
Agreement in the form attached as Exhibit D to this Agreement.
5. PAYMENT
5.1 ROYALTY. In consideration for the rights and licenses
granted to HP under this Agreement, HP agrees to pay Licensor a Per Copy Fee
royalty for each copy of a Program that HP distributes as bundled with an HP
Product, in the amount set forth in the applicable SOW. Such royalty shall
include the right to reproduce and distribute associated Documentation.
5.2 ROYALTY PAYMENT. Per Copy Fees will accrue upon
distribution of any copy of a Program bundled with an HP Product. All accrued
Per Copy Fees will be paid by HP to Licensor within [*] days after the end of
each HP fiscal quarter, which ends on the last day of each January, April, July
and October. Payments will be accompanied by a report stating the number of
units shipped with the Program distributed in the relevant quarter, and the
calculation of the royalty payment.
5.3 AUDIT. Upon fifteen (15) days prior written notice to HP,
Licensor may, at its own expense, appoint a nationally recognized independent
auditor, to whom HP has no reasonable objection, to audit and examine HP's
records of the royalty payments under Sections 5.2 of this Agreement, at HP's
offices during normal business hours, solely for the purpose of confirming the
accuracy of royalty payments hereunder. Such audit may be made no more often
than once every twelve calendar month period.
5.4 [*]
5.5 TAXES. Licensor shall be solely responsible for income
based taxes on amounts paid to Licensor by HP under this Agreement.
6. WARRANTY AND INDEMNIFICATION
6.1 GENERAL WARRANTY. (1) Licensor warrants that, it owns all
rights to, or has licensed all or a portion of, each Program and accompanying
Documentation, and that such interests are free of any and all restrictions,
settlements, judgments or adverse claims; and (2) Licensor warrants it has full
power and authority to grant HP the rights granted in this Agreement.
6.2 PROGRAM WARRANTY. Licensor warrants that each Program
referred to herein will operate in accordance with and substantially conform
to the Specifications, Documentation, manuals, and data sheets; and,
promotional literature, presentations, and any other written materials [*]
concerning the Programs that are made publicly available by Licensor or are
provided by Licensor to HP.
6.3 YEAR 2000 COMPLIANCE WARRANTY. Licensor warrants that the
Program will be "Year 2000 Compliant". Year 2000 Compliant products will perform
without error, loss of data, or
-5-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
loss of functionality on account of any inability to process, calculate, compare
or sequence date data accurately from, into and between the years 1999 and 2000
and between the twentieth century and the twenty-first century. In addition,
Year 2000 Compliant products will not cause any associated HP Products or any
systems in which they may be used to fail in any of the ways described above
provided such HP Products or systems will properly send and receive necessary
data, and in a format compatible, with the Program. This Year 2000 Compliance
warranty will remain in effect through January 31, 2001, notwithstanding any
other warranty period specified in this Agreement.
6.4 GENERAL INDEMNITY.
6.4.1 Licensor agrees to indemnify and hold HP
harmless of and from [*]
6.4.2 HP agrees to indemnify and hold Licensor
harmless of and from [*]
6.5 [*]
-6-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
[*]
6.6 ENTIRE LIABILITY FOR INFRINGEMENT. THIS SECTION 6 STATES
THE ENTIRE LIABILITY OF LICENSOR AND HP WITH RESPECT TO ANY CLAIM OF
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THE OBLIGATIONS SET FORTH IN THIS
SECTION 6 SHALL NOT BE LIMITED IN ANY WAY BY ANY OTHER PROVISIONS OF THIS
AGREEMENT, INCLUDING THE LIMITATION OF LIABILITY PROVISION IN SECTION 8 BELOW.
6.7 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN,
[*] LICENSOR [*] MAKES ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
REGARDING THE PROGRAM, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR
PURPOSE.
6.8 [*]
7. TERM AND TERMINATION
-7-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
7.1 TERM. Unless otherwise terminated earlier under this
Section 7, this Agreement shall commence as of the Effective Date, and shall
continue until [*]. This Agreement will renew automatically for
additional one (1) year periods unless written notice is given by one party to
the other as to its intention not to renew this Agreement at least sixty (60)
days prior to the end of the initial or any subsequent term. The term of each
SOW will be specified in the SOW. If this Agreement is terminated or expires
prior to the end of the term of a SOW, this Agreement will remain in effect only
with respect to such SOW until such SOW is terminated or expires.
7.2 TERMINATION FOR BREACH. Either party may terminate this
Agreement, a SOW, or both, by written notice to the other party if the other
party breaches any material provision of this Agreement and such breach is not
cured within thirty (30) days after written notice thereof is received by the
breaching party. Any breach by either party of the Confidentiality provisions of
this Agreement shall be considered a breach that cannot be cured and may be the
basis for immediate termination of this Agreement by the other party.
7.3 EFFECT OF TERMINATION. Notwithstanding any termination
of this Agreement or a SOW, all licenses granted to end users prior to the
date of termination for use of the Program shall survive. In the event of
termination by Licensor, HP may continue to license and distribute Programs
[*], as necessary to support and maintain the Programs, and as necessary to
distribute remanufactured systems that originally contained the Program so
long as HP continues to pay Licensor the applicable Per Copy Fees hereunder.
If this Agreement is terminated by HP due to breach by Licensor, HP may
continue to license and distribute Programs as provided hereunder until the
expiration of the initial term of this Agreement or the term of the
applicable SOW, whichever is longer, as long as HP continues to pay Licensor
the applicable Per Copy Fees hereunder. Upon termination by either party, HP
must return to Licensor all Complete Copies and shall either return to
Licensor, or destroy all copies of A Programs not incorporated into the final
software build for the HP Product prior to the effective date of termination,
except for a reasonable number of copies of the Program which may be retained
for support and archival purposes.
7.4 SURVIVAL. Notwithstanding any termination of this
Agreement, the following provisions of this Agreement shall survive: Sections 1,
4.1.2, 5, 6, 8, 9, and 10, and this Section 7.
8. LIMITED LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES ARISING FROM ANY CLAIM OR ACTION
HEREUNDER, BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY. [*]
9. CONFIDENTIAL INFORMATION
9.1 THE PROGRAM. The Program in object code form and related
Documentation provided to HP hereunder are deemed non-confidential, and., HP is
not under any obligation to Licensor to restrict access to or use of such
Programs in object code form or related Documentation, provided HP complies with
the term of this Agreement.
-8-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
9.2 CONFIDENTIAL INFORMATION. During the term of this
Agreement, either party may receive or have access to technical information, as
well as information about product plans and strategies, promotions, customers
and related non-technical business information which the disclosing party
considers to be confidential ("Confidential Information"). In the event such
information is disclosed, the parties shall first agree to disclose and receive
such information in confidence. If then disclosed, the information shall be
labeled [HP or Licensor] Confidential, or if not marked (e.g. orally disclosed)
but treated as confidential at the time of disclosure shall be designated as
confidential in a written memorandum or mail sent to recipient prior to or
within thirty days of disclosure, summarizing the confidential information
sufficiently for identification. Such Confidential Information shall be used by
only those employees of the receiving party who have a need to know such
information for purposes related to this Agreement. Notwithstanding any
provision to the contrary, all source code provided by Licensor or HP to the
other, and all business information with respect to any unpublished Licensor or
HP products, are deemed Confidential Information for the purposes of this
Section 9.
9.3 NONDISCLOSURE. The receiving party shall protect any such
Confidential Information of the disclosing party from unauthorized disclosure to
third parties with the same degree of care as the receiving party uses for its
own similar information for a period of [*] years from the date of
disclosure. The foregoing restriction shall not apply to any information which
(i) was in the public domain or publicly known at the time it was communicated
to the receiving party by the disclosing party; (ii) entered the public domain
or became publicly known after it was communicated to the receiving party by the
disclosing party through no fault of the receiving party; (iii) was in the
receiving party's possession free of any obligation of confidence at the time it
was communicated to the receiving party by the disclosing party; or (vi) was
developed by employees or agents of the receiving party independently of and
without reference to any information communicated to the receiving party by the
disclosing party. In addition, Section 10 will not be construed to prohibit any
disclosure that is (a) necessary to establish the rights of either party under
this Agreement or (b) required by a valid court order or subpoena, provided in
the latter case that the party required to make such disclosure notifies the
other party (whose Confidential Information is to be disclosed) thereof promptly
and in writing and cooperates with the other party if the other party seeks to
contest or limit the scope of such disclosure.
10. OTHER PROVISIONS
10.1 [*]
10.2 RELATIONSHIP MANAGERS. Each party designates the person
set forth in EXHIBIT D as the primary contact of each party with respect to this
Agreement, which person may be redesignated a party by notice to the other.
10.3 INDEPENDENT CONTRACTORS. The relationship of HP and
Licensor under this Agreement is that of independent contractors, and neither
party is an employee, agent, partner or joint venturer of the other.
10.4 NOTICE. Unless otherwise stated, all notices required
under this Agreement shall be in writing and shall be considered given upon
personal delivery of the written notice or
-9-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
within forty eight (48) hours after deposit in the U.S. Mail, certified or
registered, and appropriately addressed to the Account Manager as set forth in
EXHIBIT D hereto.
10.5 GOVERNING LAW. This Agreement is made under and shall be
construed in accordance with the laws of the State of California, without
reference to conflict of laws principles.
10.6 EXPORT CONTROL. Both parties agree to comply with all
applicable United States laws and regulations which may govern the export of
Program abroad, including the Export Administration Act of 1979, as amended, any
successor legislation, and the Export Administration Regulations issued by the
Department of Commerce.
10.7 SEVERABILITY. The terms of this Agreement shall be
applicable severally to each Program, if more than one, and any dispute
affecting either party's rights or obligations as to one or more Program(s)
shall not affect the rights granted hereunder as to any other Program. If any
provision of this Agreement is held to be invalid or unenforceable by a court of
competent jurisdiction, then the remaining provisions will nevertheless remain
in full force and effect. The parties agree to negotiate in good faith a
substitute, valid and enforceable provision which most nearly effects the
parties' intent in entering into this Agreement.
10.8 HEADINGS. The captions of Sections of this Agreement are
for reference only and are not to be construed in any way as terms.
10.9 ASSIGNMENT. Neither this Agreement nor any part hereof
may be assigned by either party without the other party's prior written consent,
and any attempted assignment is void. Any merger, reorganization, transfer of
substantially all assets of a party, or other change in control or ownership
will be considered an assignment for the purposes of this Agreement, except that
no such consent will be required for Licensor to assign this Agreement, or
certain SOWs thereunder, or both, as part of a divestiture of all or
substantially all of the assets of Licensor's Software Products Group into a
publicly held company as announced on June 8, 2000.
10.10 NO MINIMUM OBLIGATION. Nothing in this Agreement shall
be construed or interpreted as placing a "best efforts" standard upon HP with
respect to the use and distribution of the Program, or placing any minimum
obligation to pay Per Copy Fees.
10.11 NON-RESTRICTIVE_RELATIONSHIP. Nothing in this Agreement
shall be construed to preclude HP from independently developing, acquiring or
marketing computer software packages which may perform the same or similar
functions as those software packages provided by Licensor. Nothing in this
Agreement shall be construed to preclude either party from independently
developing, acquiring or marketing products which may perform the same or
similar functions as the HP products.
10.12 WAIVER. Neither party's failure to exercise any of its
rights hereunder shall constitute or be deemed a waiver or forfeiture of any
such rights.
10.13 FORCE MAJEURE. Nonperformance of either party will be
excused to the extent that performance is rendered impossible by strike, fire,
flood, governmental acts or orders or restrictions or other similar reason where
failure to perform is beyond the control and not caused by
-10-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
the negligence of the non-performing party, provided that the non-performing
party gives prompt notice of such conditions to the other party and makes all
reasonable efforts to perform. Non-performance resulting from earthquakes,
hurricanes and other similar storms, and other natural calamities shall be
deemed to be beyond the control and not caused by the negligence of a party
under this Section 10.13.
10.14 EXHIBITS. Each Exhibit referred to in this Agreement is
incorporated in full in this Agreement. This Master Software License Agreement
may have multiple Exhibits/SOWs in place; each Exhibit/SOW will be managed by
the HP entity entering into it. Each Exhibit is separate and as such may be
terminated or amended without any impact on the remaining Exhibits.
10.15 ENTIRE AGREEMENT. This document represents the entire
agreement between the parties as to the matters set forth and supersedes all
prior discussions or understandings between them, whether written or oral,
concerning the subject matter hereof `this Agreement may only be modified by a
writing signed by an authorized representative of each of Licensor and HP.
10.16 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original.
Agreed: Agreed:
HEWLETT-PACKARD COMPANY LICENSOR
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇
---------------------------- ---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇
--------------------------- -------------------------
Title: HPD MPG MGR Title: VP & GM
-------------------------- ------------------------
Date: 12/19/2000 Date: 12/14/00
--------------------------- ------------------------
Exhibits:
EXHIBIT A - Home Products Division Product ("SOW")
EXHIBIT B - HP Software License Terms
EXHIBIT C - Statement of Work ("SOW") Template
EXHIBIT D - Relationship Managers
EXHIBIT E - Equipment Loan Agreement
APPENDIX I TO EXHIBIT E - Equipment Schedule
APPENDIX 11 TO EXHIBIT E - HP Software License Terms
-11-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
EXHIBIT F - Adaptec Privacy Statement
-12-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
EXHIBIT A
STATEMENT OF WORK #HPD-1
HP HOME PRODUCTS DIVISION
This Statement of Work is governed by the Master Software License Agreement
(the "Agreement"), number ADAP001, between Hewlett-Packard Company ("HP") and
Adaptec, Inc. ("Licensor") effective as of December 7, 1999, and is fully
incorporated therein. In the event of a conflict between the terms of the
Agreement and the provisions of this SOW, the SOW shall govern and control
with respect to the transactions contemplated by such SOW. All terms used in
this Statement of Work and not otherwise defined will have the same meaning as
in the Agreement.
1. PURPOSE OF THIS SOW:
This SOW sets forth the understanding of the objectives, deliverables,
timing, staffing and fees for the bundling of Licensor's Program (as
described below) on the HP Pavilion Desktop [*]
II. RESOURCES ASSIGNED TO THIS SOW
A. HP'S PROJECT MANAGER
HP's Project Manager will be the person authorized to act as
the primary point of contact for HP and who will be
responsible for HP's performance under this SOW.
HP'S PROJECT MANAGER. [*]
PHONE NUMBER OF PROJECT MANAGER: [*]
ADDRESS OF PROJECT MANAGER: [*]
B. LICENSOR'S PROJECT MANAGER
Licensor's Project Manager will be the person authorized to
act as the primary point of contact for Contractor and will be
responsible for Contractor's performance under this SOW.
LICENSOR'S PROJECT MANAGER: [*]
PHONE NUMBER OF PROJECT MANAGER: [*]
ADDRESS OF PROJECT MANAGER: [*]
C. HP'S ESCALATION MANAGER
HP's Escalation Manager will be the person authorized to
negotiate, in good faith, with Licensor's Escalation Manager
to properly resolve disputes as to the matters contained in
this Statement of Work.
HP'S ESCALATION MANAGER. [*]
-13-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
PHONE NUMBER OF ESCALATION MANAGER: [*]
ADDRESS OF ESCALATION MANAGER: [*]
D. LICENSOR'S ESCALATION MANAGER
Licensor's Escalation Manager will be the person authorized to
negotiate, in good faith, with HP's Escalation Manager to
properly resolve disputes as to the matters contained in this
Statement of Work.
LICENSOR'S ESCALATION MANAGER: [*]
PHONE NUMBER OF ESCALATION MANAGER., [*]
ADDRESS OF ESCALATION MANAGER: [*]
III. PROGRAMS AND SERVICES TO BE DELIVERED BY LICENSOR UNDER THIS SOW
3.1 OBJECTIVES: The Licensor will provide the Program described
below.
3.2 DELIVERABLES (LICENSOR'S "PROGRAM"):
3.2.1. PROGRAM NAME: Easy CD Creator Standard Edition
version 3.5x and its successor 4.x with DirectCD version
3.01
3.2.2. SPECIFICATIONS: Easy CD Creator Standard Edition with
DirectCD is a software solution for CD-Recording systems
that runs on: Windows 95, Windows 98, NT 4, Windows 2000 and
Windows Millennium. This product allows a user to make audio
CDs, data CDs, CD labels and jewel case inserts, and to drag
and drop files directly to CD using drive letter access. See
attached technical specification.
3.2.3 DOCUMENTATION: Quick Reference Guide, context
sensitive Help
3.2.4 TRADEMARK/TRADENAME/PRODUCT NAME AS THEY ARE TO APPEAR
IN PROGRAM DOCUMENTATION: Adaptec, the Adaptec logo, Easy CD
Creator and DirectCD are trademarks of Adaptec, Inc which
may be registered in some jurisdictions. All other
trademarks are owned by their respective owners.
3.2.5 FORM AND MEDIA FOR PROGRAM AND DOCUMENTATION
(A) PROGRAM FORM/MEDIA: The program will be provided
on CD.
(B) DOCUMENTATION FORM/MEDIA: The documentation will
be provided on CD as PDF files and/or Framemaker
files and/or HTML files, per HP's request.
-14-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
(C) CD FACE ART AND FILE: Adaptec will provide
written guidelines for HP to create CD Face Art.
Adaptec does not provide graphic images for face
art.
3.2.6 LOCALIZED VERSIONS
3.2.6.1 REQUIRED: [*]
3.2.6.2 LOCALIZED VERSIONS CURRENTLY AVAILABLE:
[*]
3.2.7 SUPPORT AND MAINTENANCE:
3.2.7.1 SUPPORT TO END USERS:
(1) Free Support: Licensor's ASK On-Line system
[*]
(2) Additional Licensor Technical Support
Resources:
[*]
3.2.7.2 TECHNICAL SUPPORT TO : Licensor agrees to
provide technical support to HP for all regions in
which HP sells the program. Licensor agrees to
maintain such number of qualified personnel as is
necessary to provide timely and knowledgeable
technical support services.
3.2.7.3 TRAINING. Licensor will provide such
training to HP personnel as may be reasonably
requested in order for HP to use, copy, distribute
and support the Program as contemplated herein, and
will provide periodic technical support information
and updated training per HP's reasonable request.
3.2.7.4 LICENSOR SUPPORT:
(1) Telephone number for:
[*]
(2) Hours of operation: 9 AM - 5PM (PST)
(3) Additional Licensor Technical Support
Resources: N/A
-15-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
3.2.8 BUNDLING REQUIREMENTS: The Program will be bundled
with [*]("HP Product").
3.3 HP RESPONSIBILITIES:
- HP will work with Licensor on all phases of the software
build, software qualification and bug identification.
- HP will Provide all necessary information to inform
Licensor of any current system configuration that would
help in identifying any system configuration issues.
- HP will provide access to our R&D staff engineer, (during
standard business hours) to communicate any known issues
and work with Licensor to create a fix.
- Upon request HP will provide Licensor with the most
current Hardware available for support of the Program.
3.4 TIMING:
GOLD BYTES DELIVERY DATE:
SOFTWARE WAS QUALIFIED AND ACCEPTED FOR [*]
AS VERSION 4.X ON: [*]
3.5 GOLD BYTE DELIVERY DATES FOR [*]: SOFTWARE GOLD BYTE
WAS QUALIFIED AND ACCEPTED AS VERSION 4.X ON: [*]
IV. PAYMENT; EXPENSES; AND INVOICES
4.1 PAYMENT
4.1.1 PRICING: PER COPY FEES:
Licensor and HPD will work together to develop and
implement programs to generate increased revenue from
software upgrades. The pricing, for [*] is:
- Easy CD Creator 4.X with DirectCD 3.x - [*]
- Easy CD Creator 4.X. with DirectCD 3.x - [*]
-16-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
V. OTHER TERMS AND CONDITIONS THAT SHALL APPLY TO THIS SOW
5.1 TERM AND TERMINATION
This SOW will be effective commencing upon [*]. If all
services and Deliverables described herein are not
completed by the end date, HP may elect to extend this SOW
by providing written notice to Licensor prior to the
initial ending date or any subsequent ending date and upon
Licensor's mutual agreement. The parties' rights to
terminate this SOW and any renewals are as set forth in
Section 7 of the Agreement.
VI. END USER DATA
6.1 Any and all identifying information regarding HP Pavilion
Desktop PC End Users (including but not limited to personal
names, addresses, telephone and social security numbers, or
other identifying information) collected by Adaptec through
their Web Site (the "HP End User Information") will be
deemed to be Confidential Information of HP and subject to
Section 9 ("Confidential Information) hereof. Adaptec will
have the limited and restricted right to use the HP End User
Information solely in connection with registration of and
provision of the Services to such end users and for future
Services offered for marketing purposes consistent with
promotion defined herein. For the purpose of this SOW, when
a HP Pavilion Desktop PC End User elects to register their
information to take advantage of any further Adaptec:
products, services, or by electing to receive additional
information, such person becomes an Adaptec Customer. Any
information provided by such customer is subject solely to
the Adaptec policies attached here to as Exhibit "F".
Adaptec hereby agrees to indemnify and hold HP harmless of
and from any and all claims, suits, judgments, or
proceedings arising out of any claim that HP End User
Information or Other End User Information has been
collected, distributed, or otherwise used by Adaptec in a
manner that violates the representations made to the
customer in Adaptec's privacy policy concerning such
information ("Adaptec Privacy Policy"). Such Adaptec:
Privacy Policy is currently in the form attached hereto as
Exhibit F. Adaptec may amend the Adaptec: Privacy Policy
from time to time without notice to HP as long as the
substantive protections in the terms of any amended Adaptec
Privacy Policy are as protective of the information as the
term of the Adaptec Privacy Policy as referenced hereto.
IN WITNESS WHEREOF, the parties to the above referenced Agreement between HP
and Licensor have caused this Statement of Work #HPD-1 to be executed by their
authorized representatives.
HEWLETT-PACKARD COMPANY LICENSOR:
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇ BY: /s/ ▇▇▇ ▇▇▇▇
------------------------------ ----------------------------
NAME: ▇▇▇▇▇ ▇▇▇▇▇ NAME: ▇▇▇ ▇▇▇▇
---------------------------- --------------------------
-17-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
------------------------ -------------------------
TITLE: HPD MPG MGR TITLE: VP & GM
------------------------ -------------------------
DATE: 12/19/2000 DATE: 12/14/00
------------------------- -------------------------
-18-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
EXHIBIT B
ATTENTION: USE OF THE SOFTWARE IS SUBJECT TO THE SOFTWARE LICENSE TERMS SET
FORTH BELOW. USING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE TERMS. IF
YOU DO NOT ACCEPT THESE TERMS, YOU MAY RETURN THE ENTIRE UNUSED PERSONAL
COMPUTER PRODUCT FOR A FULL REFUND.
SOFTWARE LICENSE TERMS
The following Terms govern your use of the Software.
LICENSE GRANT. Hewlett-Packard grants you a license to Use one copy of the
version of the Software preloaded on the hard drive of the Hewlett-Packard
computer and in the box containing the CD-ROMs bundled with the
Hewlett-Packard computer, on any one computer. "You" means the company, entity
or individual whose funds are used to pay the license fee. "Use" means
storing, loading, installing, executing or displaying the Software. You may
not modify the Software or disable any licensing or control features of the
Software except as an intended part of the Software's programming features.
OWNERSHIP. The Software is owned and copyrighted by Hewlett-Packard or its
third party suppliers. Your license confers no title or ownership in the
Software and should not be construed as a sale of any rights in the Software.
Hewlett-Packard's third party suppliers may protect their rights in the event
of any violation of these terms.
COPIES AND ADAPTATIONS. You may only make copies or adaptations of the
Software for archival purposes or when copying or adaptation is an essential
step in the authorized Use of the Software. You must reproduce all copyright
notices in the original Software on all authorized copies or adaptations. You
may not copy the Software onto any bulletin board or similar system.
NO DISASSEMBLY OR DECRYPTION. You may not disassemble, decompile or decrypt
the Software unless Hewlett-Packard's prior written consent is obtained. In
some jurisdictions, Hewlett-Packard's consent may not be required for
disassembly or decompilation. Upon request, you will provide Hewlett-Packard
with reasonably detailed information regarding any disassembly or
decompilation.
TRANSFER. You may not rent or lease the Software, but you may transfer the
Software. Your license will automatically terminate upon any transfer of the
Software. Upon transfer, you must deliver the original and all complete,
partial or electronically stored copies of the Software and related
documentation to the transferee. The transferee must accept these Terms as a
condition to the transfer.
TERMINATION. Hewlett-Packard may terminate your license upon notice for
failure to comply with any of these Terms. Upon termination, you must
immediately destroy the Software, together with all copies, adaptations and
merged portions in any form.
-19-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
EXPORT REQUIREMENTS. You may not export or re-export the Software or any copy
or adaptation in violation of any applicable laws or regulations.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and documentation have been
developed entirely at private expense and are provided as "Commercial Computer
Software" or "restricted computer software". Use, duplication or disclosure by
the U.S. Government or a U.S. Government subcontractor is subject to the
restrictions set forth in subparagraph (c) (1) (ii) of the Rights in Technical
Data and Computer Software clauses in DFARS 252.227-7013 or as set forth in
subparagraph (c) (1) and (2) of the Commercial Computer Software - Restricted
Rights clauses at FAR 52.227-19, as applicable. The Contractor is
Hewlett-Packard Company, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
-20-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
EXHIBIT C
STATEMENT OF WORK TEMPLATE
STATEMENT OF WORK ("SOW") #
This Statement of Work is governed by the Master Software License Agreement
(the "Agreement"), number ADAP001, between Hewlett-Packard Company ("HP") and
Adaptec, Inc. ("Licensor") effective as of April 3, 2000, and is fully
incorporated therein. In the event of a conflict between the terms of the
Agreement and the provisions of this SOW, the SOW shall govern and control
with respect to the transactions contemplated by such SOW. All terms used in
this Statement of Work and not otherwise defined will have the same meaning as
in the Agreement.
I. PURPOSE OF THIS SOW:
This SOW sets forth the parties' understanding of the objectives,
deliverables, timing, staffing and fees for [DESCRIBE SPECIFIC WORK]
described below with HP's [NAME OF HP PRODUCT AND SPECIFIC OTHER
IDENTIFIERS OF PRODUCT AS NECESSARY].
II. RESOURCES ASSIGNED TO THIS SOW
A. HP'S PROJECT MANAGER
HP's Project Manager will be the person authorized to act as
the primary point of contact for HP and who will be
responsible for HP's performance under this SOW.
HP'S PROJECT MANAGER.
PHONE NUMBER OF PROJECT MANAGER:
ADDRESS OF PROJECT MANAGER:
B. LICENSOR'S PROJECT MANAGER
Licensor's Project Manager will be the person authorized to
act as the primary point of contact for Contractor and will
be responsible for Contractor's performance under this SOW.
LICENSOR'S PROJECT MANAGER.
PHONE NUMBER OF PROJECT MANAGER:
ADDRESS OF PROJECT MANAGER.
C. HP'S ESCALATION MANAGER (DELETE ITEM IF NOT NEEDED)
HP's Escalation Manager will be the person authorized to
negotiate, in good faith, with Licensor's Escalation Manager
to properly resolve disputes as to the matters contained in
this Statement of Work.
HP'S ESCALATION MANAGER:
-21-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
PHONE NUMBER OF ESCALATION MANAGER:
ADDRESS OF ESCALATION MANAGER.
D. LICENSOR'S ESCALATION MANAGER (DELETE ITEM IF NOT NEEDED)
Licensor's Escalation Manager will be the person authorized
to negotiate, in good faith, with HP's Escalation Manager to
properly resolve disputes as to the matters contained in this
Statement of Work.
LICENSOR'S ESCALATION MANAGER:
PHONE NUMBER OF ESCALATION MANAGER:
ADDRESS OF ESCALATION MANAGER:
E. EMPLOYEES LICENSOR ASSIGNS TO COMPLETE SERVICES AND
DELIVERABLES UNDER THIS SOW
Employees of Licensor assigned to provide services and
deliverable's under this SOW are as follows:
-------------------------------------------------------------
Resource Role
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
III. PROGRAMS AND SERVICES TO BE DELIVERED BY LICENSOR UNDER THIS SOW
3.1 OBJECTIVES:
(STATE HIGH-LEVEL PROJECT OBJECTIVES.)
The Licensor will support these efforts as presented below.
3.2 DELIVERABLES:
(CLEARLY DEFINE DELIVERABLES AND PROVIDE EXCEPTION CRITERIA FOR EACH
DELIVERABLE. THIS AREA OF THE SOW WILL PROVIDE THE MOST PROTECTION
WHEN YOU PROVIDE A CLEAR MAP OF CRITICAL PROJECT REQUIREMENTS AND MAP
THEM TO PROJECT MILESTONES. BE SURE TO INCLUDE AT A MINIMUM THE
PROGRAM NAME, SPECIFICATIONS (THESE SHOULD BE DETAILED TECHNICAL
SPECIFICATIONS), DESCRIPTION OF DOCUMENTATION, FORM AND MEDIA FOR
DELIVERY OF PROGRAM
-22-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
AND DOCUMENTATION, LOCALIZED VERSIONS REQUIRED, SUPPORT AND
MAINTENANCE, TRAINING, BUNDLING REQUIREMENTS).
3.3 HP RESPONSIBILITIES:
3.4 TIMING:
(STATE THE PERIOD OF TIME, OR ESTIMATE OF THE TIMELINE THAT THE
PROJECT/DELIVERABLES WILL REQUIRE FOR COMPLETION, DELIVERY AND
ACCEPTANCE. USE THIS SECTION TO STATE THE DEADLINES FOR THE PROJECT.)
IV. PAYMENT; EXPENSES; AND INVOICES
4.1 PAYMENT
(THIS SECTION OF THE SOW IS DESIGNED TO PROVIDE A BREAKDOWN
OF PROJECT COSTS. PROJECT NOT TO EXCEED FIGURE SHOULD BE
BROKEN DOWN AND MAPPED TO A SPECIFIC DELIVERABLE. NOTE:
[*])
Payment shall be made subject to the terms and conditions
of the Agreement.
4.2 EXPENSES
(THIS SECTION OF THE SOW ALLOWS YOU TO DEFINE ANY ADDITIONAL
PROJECT EXPENSES, I.E. IS THERE A NEED TO PROCURE HARDWARE UP
FRONT? WILL THERE BE ANY TRAVEL REQUIRED DURING THE
ENGAGEMENT? [*])
Expenses shall be paid subject to the terms and conditions of
the Agreement.
4.3 INVOICES
[*]
V. OTHER TERMS AND CONDITIONS THAT SHALL APPLY TO THIS SOW
5.1 TERM AND TERMINATION
This SOW will be effective commencing upon INSERT START DATE
and ending INSERT END DATE. If all services and Deliverables
described herein are not completed by the end date, HP may
elect to extend this SOW by providing written notice to
Licensor prior to the initial ending date or any subsequent
ending dates. The parties' rights to terminate this SOW and
any renewals are as set forth in Section 7 of the Agreement
6.1 TERMS RELATING TO NETWORK OR INTERNET CONNECTIVITY PROVIDED
THROUGH THE PROGRAM.
[]
-23-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
IN WITNESS WHEREOF, the parties to the above referenced Agreement have caused
this Statement of Work [insert #] to be executed by their authorized
representatives.
HEWLETT-PACKARD LICENSOR:
COMPANY
By:_________________________________ By:_________________________________
Name:_______________________________ Name:_______________________________
Title:______________________________ Title:______________________________
Date:_______________________________ Date:_______________________________
-24-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
EXHIBIT D
RELATIONSHIP/ACCOUNT MANAGERS
HP:
[*]
LICENSOR:
[*]
Royalties Pay To: Revenue Accounting
Pay to Name: Adaptec Inc.
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-25-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
EXHIBIT E
EQUIPMENT LOAN AGREEMENT
THIS EQUIPMENT LOAN AGREEMENT, NO.___________ (the "Agreement") is entered into
between HEWLETT-PACKARD COMPANY, a Delaware corporation ("HP"), and ADAPTEC
INC., a Delaware company located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ("Recipient"). This Agreement is effective as of August 1, 1999 (the
"Effective Date").
1. LOAN OF EQUIPMENT. HP hereby loans to Recipient, for the applicable
Term defined below, the HP-owned equipment (collectively, "HP
Equipment"), which may consist of hardware, software and documentation
described in the HP Equipment Schedule attached as APPENDIX I TO THIS
EXHIBIT E. HP may, from time to time, add, upgrade, or remove HP
Equipment from Recipient's site during the Term. All HP Equipment
received by Recipient during the Term will be described in an amended
HP Equipment Schedule signed by Recipient and appended to this
Equipment Loan Agreement. Recipient agrees, by its receipt of HP
Equipment, that all HP Equipment is subject to the provisions of this
Agreement.
2. TERM. This Agreement will begin as of the Effective Date and run for a
term of 24 months (the "Term"), unless earlier terminated by HP or
Recipient upon thirty (30) days written notice to the other. HP may in
writing extend the Term, or establish a separate Term with respect to
particular items of HP Equipment.
3. USE. Recipient may use the HP Equipment solely for the purpose of
developing and testing the Programs (as such term is defined in the
Master Software License Agreement effective as of between HP and
Adaptec). Recipient may not move any HP Equipment from the location
specified in the HP Equipment Schedule without the prior written
consent of HP. Recipient's right to use the HP Equipment is
non-transferable.
4. SOFTWARE AND DOCUMENTATION. All software provided with the HP Equipment
is hereby licensed to Recipient under HP's Software License Terms
attached as APP~JNDIX H TO THIS EXHIBIT E. If Recipient requires a
license to use any software other than as stated in the Software
License Terms, that license must be specified in the HP Equipment
Schedule. Any documentation listed in the HP Equipment Schedule is
licensed to Recipient for its use solely for the purposes stated in
Section 3 above. If Recipient wishes to make copies of any
documentation, it must first obtain HP's prior written consent.
5. OWNERSHIP. HP retains all right, title and ownership to the HP
Equipment, unless any such HP Equipment is purchased by Recipient.
Recipient hereby nominates and appoints HP as its attorney-in-fact for
the sole purpose of executing and filing, on Recipient's behalf, UCC-1
financing statements (and any appropriate amendments thereto) or a
suitable substitute document (including this Agreement) under the
provisions of the Uniform Commercial Code for the HP Equipment loaned
to Recipient hereunder. If requested by HP, Recipient will affix any
label or marking supplied by HP evidencing HP's ownership of the HP
Equipment. HP may, from time to time, inspect the HP Equipment.
Recipient may not sell, transfer, assign, pledge, or in any way
encumber or convey the HP Equipment or any portion or component of such
equipment.
-26-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
6. WARRANTY DISCLAIMER. ALL HP EQUIPMENT IS PROVIDED "AS IS", WITHOUT
WARRANTY OF ANY KIND, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. Recipient understands that some newly manufactured
HP Equipment may contain remanufactured parts equivalent to new in
performance.
7. INDEMNIFICATION. Recipient hereby agrees to defend, indemnify and hold
HP harmless from any claims or suits against HP arising from
Recipient's use of the HP Equipment, including use by its employees,
agents or subcontractor. Recipient will pay all costs, damages, losses
and expenses (including reasonable attorneys' fees) incurred by HP and
will pay any award with respect to any such claim or agreed to in any
settlement.
8. MAINTENANCE. During the Term, Recipient will maintain all HP Equipment
in good operating order and condition. All maintenance must be provided
by personnel authorized by HP. HP will provide standard installation,
support and maintenance for the HP Equipment at HP's standard rates to
Recipient during the Term; however, all maintenance costs and expenses
due to Recipient's negligence will be borne by Recipient. Recipient
will be responsible for providing HP personnel ready and safe access to
the HP Equipment for such maintenance and support.
9. RISK OF LOSS. Recipient will bear all risk of loss with respect to the
HP Equipment from receipt until such HP Equipment is returned to HP.
All HP Equipment returned to HP must include the same components as
received by Recipient, and must be in good operating order and
condition. Charges may be imposed by HP if Recipient fails to return
the HP Equipment in such condition or within the return timeframe set
forth herein.
10. SHIPPING COSTS. Unless otherwise agreed in writing by HP, Recipient
will be responsible for and pay all delivery, freight and rigging
charges, all taxes and duties, and all other shipping costs and
expenses with respect to the delivery or return of any HP Equipment
hereunder.
11. LIMITATION OF LIABILITY. HP WILL NOT BE LIABLE FOR ANY DIRECT,
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED
ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF THIS
EQUIPMENT LOAN AGREEMENT OR RECIPIENT'S USE OF THE HP EQUIPMENT.
12. TERMINATION. Upon expiration or earlier termination of the Term,
Recipient will return to HP all HP Equipment within 10 business days.
HP may permit Recipient to purchase certain items of the HP Equipment
upon termination under the purchase terms set forth below. In the event
that Recipient is permitted to purchase any of the HP Equipment and
fails to return that Equipment to HP upon expiration of the Term within
such 10-day period, Recipient will be deemed to have elected to
purchase the HP Equipment, and HP will invoice Recipient accordingly.
13. PURCHASE OPTION. If HP permits Recipient to purchase any of the HP
Equipment, Recipient may elect to purchase those items of the HP
Equipment under HP's then current standard terms and conditions,
provided that such HP Equipment may not be purchased solely for resale.
Upon purchase, such HP Equipment will be provided with HP's then
current standard warranty provisions for used equipment. The purchase
price for HP Equipment purchased under this Section will be a price
mutually agreed upon by the parties. No promotional or purchase
discounts will apply. Such purchase will not qualify for any stock
rotation or price protection under any other agreement which Recipient
may have with HP.
14. GENERAL PROVISIONS.
-27-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
(a) NOTICES. All notices to be given under this Agreement must be
in writing and addressed to the location specified in the
Master Agreement or as designated in the opening paragraph of
this Agreement if there is no Master Agreement. Notices are
validly given upon the earlier of confirmed receipt by the
receiving party or three days after dispatch by courier or
certified mail, postage prepaid, properly addressed to the
receiving party. Notices may also be delivered by telefax and
will be validly given upon oral or written confirmation of
receipt. Either party may change its address for purposes of
notice by giving notice to the other party in accordance with
these provisions.
(b) NO ASSIGNMENT. Neither this Agreement nor any right,
privilege, license or obligation set forth herein may be
assigned, transferred or shared by Recipient without HP's
prior written consent, and any such attempted assignment or
transfer is void. Any merger, consolidation, reorganization,
transfer of substantially all assets of Recipient or other
change in control or ownership of Recipient will be considered
an assignment for the purposes of this Agreement.
(c) ENTIRE AGREEMENT. This Agreement and the attached Exhibits
comprise the entire understanding between the parties with
respect to its subject matter and supersede any previous
communications, representations, or agreements, whether oral
or written. No modification of this Agreement will be binding
on either party unless in writing and signed by an authorized
representative of each party.
(d) GOVERNING LAW. This Agreement will be governed in all respects
by the laws of California without reference to any choice of
laws provisions, as though this Agreement were entered into by
residents of that State to be wholly performed within that
State. The parties hereby waive any application of the United
Nations Convention on Contracts for the International Sale of
Goods (as promulgated in 1980 and any successor or subsequent
conventions) with respect to the performance or interpretation
of this Agreement.
APPROVED AND AGREED:
RECIPIENT: ADAPTEC, INC. HEWLETT-PACKARD COMPANY
By: By:
Print Name: Print Name:
Title: Title:
Date: Date:
-28-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
APPENDIX I TO
EXHIBIT E (EQUIPMENT LOAN AGREEMENT)
(insert) EQUIPMENT SCHEDULE
-29-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
APPENDIX II TO
EXHIBIT E (EQUIPMENT LOAN AGREEMENT)
HP SOFTWARE LICENSE TERMS
ATTENTION: USE OF THE SOFTWARE IS SUBJECT TO THE HP SOFTWARE LICENSE TERMS SET
FORTH BELOW. USING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE LICENSE
TERMS. IF YOU DO NOT ACCEPT THESE LICENSE TERMS, YOU MAY RETURN THE SOFTWARE
FOR A FULL REFUND. IF THE SOFTWARE IS BUNDLED WITH ANOTHER PRODUCT, YOU MAY
RETURN THE ENTIRE UNUSED PRODUCT FOR A FULL REFUND.
HP SOFTWARE LICENSE TERMS
The following License Terms govern your use of the accompanying Software unless
you have a separate written agreement with HP.
LICENSE GRANT. HP grants you a license to Use one copy of the Software. "Use"
means storing, loading, installing, executing or displaying the Software. You
may not modify the Software or disable any licensing or control features of the
Software. If the Software is licensed for "concurrent use", you may not allow
more than the maximum number of authorized users to Use the Software
concurrently.
OWNERSHIP. The Software is owned and copyrighted by HP or its third party
suppliers. Your license confers no title or ownership and is not a sale of any
rights in the Software, its documentation or the media on which they are
recorded or printed. Third party suppliers may protect their rights in the
Software in the event of any infringement.
COPIES AND ADAPTATIONS. You may only make copies or adaptations of the Software
for archival purposes or when copying or adaptation is an essential step in the
authorized Use of the Software on a backup product, provided that copies and
adaptations are used in no other manner and provided further that Use on the
backup product is discontinued when the original or replacement product becomes
operable. You must reproduce all copyright notices in the original Software on
all copies or adaptations. You may not copy the Software onto any public or
distributed network.
NO DISASSEMBLY OR DECRYPTION. You may not disassemble or decompile the Software
without HP's prior written consent. Where you have other rights under statute,
you will provide HP with reasonably detailed information regarding any intended
disassembly or decompilation. You may not decrypt the Software unless necessary
for the legitimate use of the Software.
TRANSFER. Your license will automatically terminate upon any transfer of the
Software. Upon transfer, you must deliver the Software, including any copies and
related documentation, to the transferee. The transferee must accept these
License Terms as a condition to the transfer.
TERMINATION. HP may terminate your license upon notice for failure to comply
with any of these License Terms. Upon termination, you must immediately destroy
the Software, together with all copies, adaptations and merged portions in any
form.
EXPORT REQUIREMENTS. You may not export or re-export the Software or any copy or
adaptation in violation of any applicable laws or regulations.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and any accompanying
documentation have been developed entirely at private expense. They are
delivered and licensed as "commercial computer software" as defined in DFARS
252.227-7013 (Oct 1988), DFARS 252.211-7015 (May 1991) or DFARS 252.227-7014
(Jun 1995), as a "commercial item" as defined in FAR 2.101(a), or as "Restricted
computer software" as defined in FAR 52.227-19 (Jun 1987)(or any equivalent
agency regulation or contract clause), whichever is applicable. You have only
those rights provided for such Software and any accompanying documentation by
the applicable FAR or DFARS clause or the HP standard software agreement for the
product involved.
-30-
Confidential treatment has been requested with respect to the omitted portions
of this exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as [*]. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.
EXHIBIT F
ADAPTEC'S PRIVACY STATEMENT
-31-