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EXHIBIT 10.44
ALL SECTIONS MARKED WITH TWO ASTERISKS ("**") REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
BY ▇▇▇▇ TECHNOLOGY, INC. AS PART OF A REQUEST FOR CONFIDENTIAL TREATMENT.
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement"), made this 25th day of June
1997 and effective as of April 1, 1997 (the "Effective Date"), is entered into
by and between FUJITSU LIMITED, a Japanese corporation with its registered
office at 1-1 Kamikodanaka 4-chome, ▇▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇-▇▇▇,
▇▇▇-▇▇ ▇▇▇▇▇ ("Fujitsu"), and ▇▇▇▇ TECHNOLOGY, INC., a Delaware corporation with
its principal office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
U.S.A. ("▇▇▇▇" and, together with Fujitsu, referred to collectively as the
"Parties" and each individually as a "Party").
RECITALS
WHEREAS, ▇▇▇▇ is developing a proprietary UltraSPARC(TM) compatible
microprocessor known as Viper ("Viper");
WHEREAS, Fujitsu desires to have the right, subject to the terms and
conditions of this Agreement, to manufacture and sell Viper worldwide and to
utilize Viper-related technology in the development of future generations of
microprocessors and other products;
WHEREAS, Fujitsu is willing to pay certain development costs for Viper and
to sublicense to ▇▇▇▇ certain rights to technology owned by Sun Microsystems,
Inc. and licensed to Fujitsu which ▇▇▇▇ desires to incorporate into Viper;
NOW THEREFORE, in consideration of the foregoing and on the terms and
conditions set forth herein, the Parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS
"Acceptance Criteria" has the meaning given such term in Section 6.1.
"Affiliate" means, with respect to any Person (the "Specified Person"),
any Person other than the Specified Person directly or indirectly controlling,
directly or indirectly controlled by or under direct or indirect common control
with, the Specified Person, provided that ▇▇▇▇ and Fujitsu shall not be
considered Affiliates of each other for the purposes of this Agreement. For
purposes of this definition, the term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities or
by contract or otherwise.
"Confidential Information," with respect to a Party, means technical,
business, marketing, planning and other information, ideas, materials or subject
matter of such Party, including with respect to ▇▇▇▇ information and data
regarding Viper and with respect to Fujitsu and HaL information and data
regarding a proprietary microprocessor architecture and related technology owned
by HaL known as Denali, whether disclosed orally, in writing, in magnetic,
photographic or other tangible form or otherwise, and whether disclosed by such
Party or a third party, and designated (at or before the time of disclosure or,
if disclosed orally, within thirty (30) days thereafter) as confidential or
proprietary, including any information previously disclosed and subject to
confidential treatment under the NDA. "Confidential Information" also includes,
with respect to both Parties, the terms, conditions
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and existence of this Agreement and the Specifications. "Confidential
Information" does not include information, ideas, materials or other subject
matter that (i) is or becomes generally known or available by publication,
through commercial use or otherwise through no fault of the receiving Party and
not, to the knowledge of the receiving Party, as a result of a breach of
confidentiality by any party; (ii) was known by the receiving Party before
receipt from the disclosing Party; (iii) is independently developed by the
receiving Party without use of the disclosing Party's Confidential Information;
(iv) is lawfully obtained from a third party that has the right to make such
disclosure; or (v) is required to be disclosed by a judicial order or decree of
governmental law or regulation, provided that the receiving Party promptly
notifies the disclosing Party of such requirement and reasonable opportunity is
allowed by the receiving Party for the disclosing Party to file for or obtain a
protective order or otherwise proceed to protect under applicable law the
interests of the disclosing Party. Without limitation of the generality of, and
notwithstanding, the foregoing, "Confidential Information" includes information
related to product and marketing plans, designs, costs, business opportunities,
personnel, research and development and knowhow of a Party or any Subsidiary,
Affiliate, customer or supplier of such Party.
"Deliverables" means the deliverables described in Exhibit B and other
information, materials and subject matter that may be disclosed or provided by
▇▇▇▇ to Fujitsu in furtherance of this Agreement, provided that with respect to
documentation, only that documentation listed on Exhibit B shall be a
"Deliverable" for purposes of this Agreement.
"Deliverable Specifications" means the specifications for Deliverables
other than the Product as set forth in Exhibit B or as otherwise agreed in
writing between the Parties.
"Derivative Product" means any modification, correction, addition,
extension, upgrade, improvement or other form in which any Deliverable or the
Product, or any idea, concept, technique, invention, creation, work, process,
design or method embodied therein, may be recast, transformed or adapted,
including, but not limited to, all works that incorporate any Intellectual
Property Rights contained in any Deliverable or the Product.
"Engineering Change Request" or "ECR" means request made by Fujitsu and
agreed by ▇▇▇▇ to add a material functional, electrical or physical aspect, or
materially modify a functional, electrical or physical aspect, of the Product,
after the Final Specifications have been finalized and approved, other than due
to an Error.
"Error" means (i) a defect in a Deliverable or the Product that causes it
not to conform to the Specifications; or (ii) an error or deficiency in any
documentation Deliverable that renders it materially inaccurate, materially
erroneous or materially unreliable.
"Existing Viper Technology" means the Viper Technology that is (1)
protected under any patent existing on the Effective Date, (2) the subject of a
patent application filed prior to the Effective Date, or (3) existing on the
Effective Date, protectable under patent and described on Exhibit E, provided
that a patent application is filed with respect to such technology within the
period indicated on Exhibit E or such longer period as otherwise agreed in
writing between the Parties.
"FCS" means the first date that a product is available for shipment to
customers for revenue.
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"Final Specifications" means specifications delivered in accordance with
Section 5 and Exhibit A, including those as to functionality, performance,
interoperability and functional features designed to enhance reliability, for
the Product and the design of the Product agreed to in writing between the
Parties, as modified from time to time in accordance with Section 5.
"Fujitsu Technology" means the rights granted to ▇▇▇▇ pursuant to Section
8.1(d). "Fujitsu V9 and UPA-1 Test Suites" means test programs developed by
Fujitsu and/or HaL to verify the functionality of SPARC V9 processor implemented
by Fujitsu and/or HaL.
"HaL" means HaL Computer Systems, Inc., a Delaware corporation.
"Intellectual Property Rights" means all intellectual property, industrial
property and other intangible rights arising under the laws of any country,
including without limitation all rights with respect to (i) patents and patent
applications and similar rights (including utility patent, design patent and
utility model rights and applications therefor), (ii) copyrights (including any
renewals and extensions thereof), databases and mask works, and any
applications, registrations and other rights with respect thereto, and (iii)
trade secrets, knowhow, confidential information, and technology.
"Licensable Viper Design Methodology" means those portions of the Viper
Design Methodology described on Exhibit D-1 and those portions not described on
Exhibit D-2.
"NDA" has the meaning given such term in Section 14.17.
"Non-Licensable Viper Design Methodology" means those portions of the
Viper Design Methodology described on Exhibit D-2.
"Person" shall mean and include an individual, a partnership, a joint
venture, a corporation, a limited liability company, a trust, an unincorporated
organization and a court, regulatory or administrative agency, or other
governmental authority.
"Pre-Viper Design Methodology" means the simulation environments, design
environments, design tools, libraries, scripts, layout generators and test and
checking tools developed by ▇▇▇▇ before work began on the Viper Technology,
including without limitation (a) that employed in the design and implementation
of the ▇▇▇▇ "Colorado" family of microprocessors, but not including any such
environments, tools, libraries, scripts or generators employed in the design and
implementation of the Viper Technology and (b) the ▇▇▇▇ distributed system
simulation environment.
"Pre-Viper Technology" means (i) technology developed by ▇▇▇▇ before work
began on the Viper Technology, including without limitation that related to the
▇▇▇▇ "Colorado" family of microprocessors, that is protected or protectable
under any (1) patent, (2) mask work or (3) copyright law, and (ii) Pre-Viper
Design Methodology.
"Product" means (i) a single chip that incorporates the Viper
Microprocessor Core and UPA, (ii) a processor module that incorporates such
single chip, an L2 cache and other components, and (iii) an open boot program
(OBP) and power on self test (POST) software for Viper for Solaris, each
designed to conform to the Specifications.
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**
"Related Products" means any Derivative Product that incorporates (i) 90%
or more of the Viper Microprocessor Core (excluding SRAM cell transistors within
cache blocks) with external SPARC Instruction Set Architecture ("ISA")
interface, (ii) a UPA-1 or UPA-2 interface (any version), and (iii) the process
line width geometry (e.g. .25(micron)) utilized in the Product, provided that
any Derivative Product that incorporates a shrink or other material change in
process technology, a different processor/memory interface or a different
external ISA interface would not be a "Related Product."
"Schedule" means the timetable for services and delivery set forth in
Exhibit A.
"Services" has the meaning given such term in Section 2.1.
"Software Sublicense Agreement" has the meaning given such term in Section
3.1(b).
"Specifications" means the Deliverable Specifications and, until replaced
by the Final Specifications, the Target Specifications.
"Sublicense Agreement" has the meaning given such term in Section 3.1(a).
"Subsidiary" means, with respect to any Person, any entity of which an
aggregate of more than 50% of the voting securities of all classes or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other Persons performing similar functions are owned
directly or indirectly by such Person.
"Sun" means Sun Microsystems, Inc.
"Sun License Agreement" means the Sun Microelectronics License Agreement
(UPA Interconnect Architecture), dated July 25, 1996, by and between Sun and
Fujitsu.
"Sun Software License Agreement" means the Sun Microelectronics Software
License Agreement, dated February 19, 1997, by and between Sun and Fujitsu.
"Sun Technology" means the rights granted to ▇▇▇▇ pursuant to the
Sublicense Agreement, the Software Sublicense Agreement, **.
"System" means an apparatus that integrates at least one CPU with other
interconnected units, provided that the apparatus can execute operating system
functions.
"Tapeout" means the first design release for manufacturing.
"Target Specifications" means specifications, including those as to
functionality, performance, interoperability and functional features designed to
enhance reliability, for the
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Product and the design of the Product set forth in Exhibit C and in the
documents referred to therein.
"Transferred Business" means any Person or other business unit that is an
Affiliate of a Party and contains a business unit acquired from the other Party
by the Party or any Affiliate on or before the Effective Date.
"UPA-1" means the processor/memory bus architecture and specification
developed and utilized by Sun in connection with its UltraSPARC-1 and
UltraSPARC-2 microprocessors.
"UPA-2" means the processor/memory bus architecture and specification
developed by Sun, known internally at Sun as the "Safari" bus, which the Parties
understand will be utilized by Sun in connection with its forthcoming
UltraSPARC-3 microprocessor.
"UPA" shall mean the UPA-1 unless Fujitsu and ▇▇▇▇ jointly agree in
writing that it shall mean the UPA-2.
"Viper Design Methodology" means the simulation environments, design
environments, design tools, libraries, scripts, layout generators and test and
checking tools employed in the design and implementation of the Viper
Technology.
"Viper Microprocessor Core" means the processor core of a single chip
"Product" which has the CPU features described in Exhibit C excluding the UPA
bus interface and which is uniquely defined as the collection of schematics and
layouts of a single chip "Product" excluding the UPA bus interface block.
"Viper Technology" means the architecture, circuitry, logic, layout,
packaging, and module design and specifications heretofore developed by or on
behalf of ▇▇▇▇ in connection with Viper or developed by or on behalf of ▇▇▇▇
pursuant to this Agreement (including, without limitation the Product and all
such items developed for, but not implemented in the Product), and all
Intellectual Property Rights pertaining thereto. "Viper Technology" shall
include any Pre-Viper Technology that is incorporated by ▇▇▇▇ in the Product or
used by ▇▇▇▇ in the development of the Product but such Technology in the form
it existed prior to such incorporation or use shall also be Pre-Viper
Technology.
2. ▇▇▇▇ DEVELOPMENT SERVICES
2.1. Product Development. ▇▇▇▇ hereby agrees to deliver the Deliverables
and develop and complete the Product in conformance with the Specifications and
the Schedule and to perform the other services described in this Agreement, in
each case on the terms and conditions set forth in this Agreement (the
"Services").
2.2. Deliveries. Pursuant to ▇▇▇▇' commitment under Section 2.1, ▇▇▇▇
hereby agrees to deliver to Fujitsu (1) the Deliverables in accordance with the
Schedule and (2) at Fujitsu's reasonable request from time to time, copies of
any work in progress, internal documentation and other materials related to the
Deliverables or Product. Fujitsu agrees that the amount of time it will take
▇▇▇▇ to fulfill any such request shall be taken into account in determining
whether such request is reasonable, but Fujitsu shall have no obligation to
agree to any modification of the Schedule other than as provided in Section 6.3.
Unless otherwise
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agreed to by the Parties in writing, each Deliverable shall include any and all
design documentation and diagnostic and testing materials relating to the
Deliverable and other materials and information reasonably requested by Fujitsu,
including, without limitation, any and all materials or information necessary
for the design, development, implementation, assembly, testing, operation,
modification or other use of the Deliverable, provided that failure to deliver
any documentation relating to a Deliverable that is not in itself a Deliverable
shall not constitute or be deemed a failure to deliver or a delay in delivery of
such Deliverable for purposes of Section 6. ▇▇▇▇ acknowledges that time is of
the essence in providing the Deliverables to Fujitsu in accordance with the
Schedule.
2.3. Review. Fujitsu may conduct a reasonable number of periodic reviews,
including reviews at ▇▇▇▇' premises, of the Product and the Deliverables. At
Fujitsu's reasonable request, ▇▇▇▇ will provide Fujitsu with written reports
regarding its work on the Product in form and substance acceptable to both
Fujitsu and ▇▇▇▇ and with copies of any work in progress, internal documentation
and related materials. Additionally, at Fujitsu's reasonable request, ▇▇▇▇ will
make presentations to Fujitsu regarding such work. Fujitsu agrees that the
amount of time it will take ▇▇▇▇ to fulfill any such request shall be taken into
account in determining whether such request is reasonable, but Fujitsu shall
have no obligation to agree to any modification of the Schedule other than as
provided in Section 6.3. The Parties currently anticipate satisfying Fujitsu's
information requirements through weekly status reports, and monthly schedule and
quarterly review meetings. Fujitsu will pay ▇▇▇▇' reasonable travel expenses if
Fujitsu requests that the presentation be made at a location outside the Austin,
Texas area, provided that such expenses are approved in advance by Fujitsu.
2.4. Design Methodology.
(a) Fujitsu agrees that ▇▇▇▇ has no obligation under this Agreement
to (i) customize or modify the Viper Design Methodology for any design
environment other than that for which it was designed by ▇▇▇▇, (ii) provide any
documentation for the Viper Design Methodology over and above that which is or
was created for ▇▇▇▇' internal needs, or (iii) update or support the Viper
Design Methodology or any associated documentation in the future.
Notwithstanding the preceding sentence, ▇▇▇▇ agrees to provide any new or
updated Viper Design Methodology (together with any associated documentation)
not previously provided to Fujitsu at the same time it delivers any Deliverable
to Fujitsu and to provide a final, complete set of Viper Design Methodology to
Fujitsu upon FCS. Following FCS, ▇▇▇▇ shall have no obligation to provide any
Viper Design Methodology to Fujitsu.
(b) Fujitsu shall be entitled to receive any Pre-Viper Design
Methodology (other than the ▇▇▇▇ distributed system simulation environment) that
is employed in the design and implementation of the Viper Technology. Upon
request therefor by Fujitsu and following mutual consultations in good faith,
▇▇▇▇ agrees to provide any such Pre-Viper Design Methodology to Fujitsu and such
Pre-Viper Design Methodology shall thereupon become Non-Licensable Viper Design
Methodology.
(c) If Fujitsu reasonably believes that a grant of a license to any
Non-Licensable Viper Design Methodology (except for any such Viper Design
Methodology that was once Pre-Viper Design Methodology) is necessary for the
exercise by any Person to whom Fujitsu has granted a license in the New
Technology of the other rights granted to such
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Person pursuant hereto, upon the request of Fujitsu and subject to the written
consent of ▇▇▇▇, which shall not be unreasonably withheld, such Non-Licensable
Viper Design Methodology shall become Licensable Viper Design Methodology.
2.5. UPA-2. In the event that the Parties agree that the Product will be
UPA-2 rather than UPA-1 based or agree that the Services shall include the
development of a UPA-2 based product in addition to the Product, the Parties
will discuss in good faith amendments to this Agreement, including to the
Schedule, the Deliverables, the Specifications and the payments to be made
against delivery of the Deliverables in order to implement such change or
addition. Fujitsu acknowledges that such change or addition may require expenses
and payments in addition to those provided hereunder.
3. FUJITSU CONTRIBUTIONS
3.1. Sun Sublicenses.
(a) Fujitsu agrees to ▇▇▇▇▇ ▇▇▇▇ a sublicense of certain license
rights granted to Fujitsu pursuant to the Sun License Agreement for use by ▇▇▇▇
in performance of the Services and in the development, manufacture, marketing
and sale of the Product and Derivative Products. Such sublicense shall be
conditioned upon (a) execution of a sublicense agreement between Fujitsu and
▇▇▇▇ substantially in the form attached hereto as Attachment 1 (the "Sublicense
Agreement") and (b) the payment by ▇▇▇▇ to Fujitsu of any applicable per-copy
royalty fee payable pursuant to the Sun License Agreement, as amended, with
respect to any Products or Derivative Products manufactured, marketed or sold by
▇▇▇▇ that incorporate the licensed rights. Fujitsu hereby waives any license fee
that might otherwise be payable by ▇▇▇▇ with respect to the Sublicense
Agreement.
(b) Fujitsu agrees to ▇▇▇▇▇ ▇▇▇▇ a sublicense of certain license
rights granted to Fujitsu pursuant to the Sun Software License Agreement for use
by ▇▇▇▇ in performance of the Services and in the development, manufacture,
marketing and sale of the Product and, to the extent permitted by the Sun
Software License Agreement, Derivative Products. Such sublicense shall be
conditioned upon (a) amendment of the Sun Software License Agreement to
incorporate license rights sufficient to permit the manufacture, marketing and
sale of the Products by ▇▇▇▇ and, to the extent permitted by the Sun Software
License Agreement, Derivative Products, (b) execution of a sublicense agreement
between Fujitsu and ▇▇▇▇ in a form reasonably acceptable to Fujitsu (the
"Software Sublicense Agreement") and (c) the payment by ▇▇▇▇ to Fujitsu of any
applicable license fee and/or per-copy royalty fee payable pursuant to the Sun
Software License Agreement, as amended, with respect to any Products or
Derivative Products manufactured, marketed or sold by ▇▇▇▇ that incorporate the
licensed rights. To the extent permitted by Sun, Fujitsu agrees to pass through
to ▇▇▇▇ in the Software Sublicense Agreement any representations and warranties
or indemnities with respect to the Sun Technology provided by Sun pursuant to
the Software License Agreement. If the Sun Software License Agreement does not
permit Fujitsu to sublicense ▇▇▇▇ for all ▇▇▇▇ Derivative Products, Fujitsu
agrees to seek, in good faith, an amendment to the Sun Software License
Agreement permitting such sublicense but shall have no obligation to obtain such
amendment.
(c) **
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(d) **
(e) **
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(f) ** In the event that ▇▇▇▇ ceases to be a Subsidiary of Fujitsu,
the continuation of any sublicense already executed or agreed to between Fujitsu
and ▇▇▇▇ shall be subject to the terms of the applicable agreement between
Fujitsu and Sun.
(g) Any per-copy royalty fees payable by ▇▇▇▇ to Fujitsu or by
Fujitsu to ▇▇▇▇ pursuant to the terms of this Section 3.1 or the terms of the
Sublicense Agreement, Software Sublicense Agreement, ** shall be in
reimbursement of, and shall not exceed, the per-copy royalty fees then payable
to Sun by Fujitsu or ▇▇▇▇, as the case may be, pursuant to the corresponding
master license agreement.
3.2. Subcontractor. Fujitsu may, in its sole discretion, elect to engage
HaL as a subcontractor to assist Fujitsu in the performance of its obligations
hereunder. In the event Fujitsu does so engage HaL, it shall enter into a
subcontract agreement with HaL on terms and conditions consistent with the terms
and conditions hereof (including as to restrictions on the disclosure of
Confidential Information) (the "Subcontract Agreement"). Fujitsu agrees to cause
HaL to comply with the terms and conditions of the Subcontract Agreement. Any
specific reference in this Agreement to HaL shall be deemed to be to HaL as a
subcontractor of Fujitsu.
3.3. Engineers. At the request of ▇▇▇▇, Fujitsu will consider making
available to ▇▇▇▇, to assist in performance of the Services, Fujitsu and/or HaL
engineers familiar with the SPARC architecture and with the development of
SPARC-compatible microprocessors. The decision to make such engineers available
will be made by Fujitsu and HaL, in their sole discretion, after consultation
with ▇▇▇▇, and will reflect, among other things, the staffing constraints, if
any, faced by HaL or Fujitsu with respect to its separate development projects
from time to time. Any engineers will be made available on terms to be mutually
agreed in writing after consultation among Fujitsu, HaL, and ▇▇▇▇ and such
engineers, to the extent they are assisting ▇▇▇▇ in the performance of the
Services, shall be subject to the direction and control of ▇▇▇▇ unless otherwise
agreed. No dispatch by Fujitsu or HaL of engineers to ▇▇▇▇ will modify in any
respect ▇▇▇▇' sole responsibility for performing the Services and completing and
delivering the Deliverables and the Product on the terms provided herein.
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3.4. Other Services.
(a) Fujitsu may, in its sole discretion, elect to conduct alpha-site
system verification. In the event that Fujitsu becomes an alpha-site, it will
provide to ▇▇▇▇, without charge, the complete results of such verification and
debugging as Fujitsu elects to perform in its sole discretion.
(b) At the request of ▇▇▇▇, Fujitsu may, in its sole discretion,
elect to provide system test vehicles and system development boards for the
Product. In the event that Fujitsu so elects it may elect to charge ▇▇▇▇
separately, on terms to be mutually agreed in writing between the Parties, for
such system test vehicles and system development boards.
4. PAYMENT
4.1. Payment for Deliverables.
(a) Fujitsu shall pay the amount set forth in Exhibit A for each
Deliverable by the twentieth (20th) day of the calendar month following the
month in which Fujitsu accepts such Deliverable, provided that if such
Deliverable is accepted after the twentieth (20th) day of any calendar month
Fujitsu shall pay the amount by the twentieth (20th) day of the calendar month
which is two months after the month in which Fujitsu accepts such Deliverable.
Any amount due from Fujitsu hereunder that is more than thirty (30) days late
shall bear interest from the due date until the date of actual payment at the
rate of nine percent (9%) per annum compounded semiannually. Once due and
payable by Fujitsu, each of the amounts set forth in Exhibit A shall, subject to
the terms hereof, be payable and non-refundable even in the event of ▇▇▇▇'
failure to deliver, or Fujitsu's failure to accept or rejection of, any
subsequent Deliverable.
(b) Fujitsu's payment obligations will be subject to receipt by
Fujitsu of an invoice from ▇▇▇▇ referencing this Agreement and setting forth the
correct amount owed by Fujitsu. Such invoices shall be forwarded by ▇▇▇▇ to
Fujitsu by facsimile to the address set forth for notices in Section 14.11.
(c) ▇▇▇▇ acknowledges that it has been informed by Fujitsu that the
payment terms set forth in subsections(a) and (b) above are the standard payment
terms within Fujitsu but that such terms may be altered in certain
circumstances. Fujitsu agrees with respect to the first and second Deliverables
listed in the Schedule to use its best efforts to pay the respective amounts set
forth in the Schedule for such Deliverable no later than, in the case of the
first Deliverable, the seventh (7th) day, and, in the case of the second
Deliverable, the fourteenth (14th) day, after acceptance of such Deliverable.
4.2. Engineering Change Requests.
(a) Any ECRs will be charged separately to Fujitsu by ▇▇▇▇ on an
itemized statement at the rate of $20,000 per man-month (or a pro rata charge
for any fraction thereof) plus materials at cost and travel expenses, if any. If
special CAD tools or other software or hardware applicable to the ECR must be
acquired by ▇▇▇▇ for the implementation of the ECR, the purchase of any such
tools or hardware shall be pre-approved by Fujitsu in writing and Fujitsu and
▇▇▇▇ will separately agree, in advance in writing, on an item by item
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basis, on the allocation of the cost of such tools or hardware (and any
ownership or other rights of the Parties with respect thereto) between the
Parties.
(b) ▇▇▇▇ shall forward to Fujitsu invoices referencing this
Agreement and setting forth the amount of charges attributable to ECRs and
related expenses after ▇▇▇▇' receipt of Fujitsu's written notice of acceptance
of the corresponding ECRs. Such invoices shall be forwarded by ▇▇▇▇ to Fujitsu
by facsimile to the address set forth for notices in Section 14.11. Fujitsu
shall pay any invoiced amounts by the twentieth (20th) day of the calendar month
following the month in which Fujitsu receives the ▇▇▇▇ invoice, provided that if
such invoice is received after the twentieth (20th) day of any calendar month
Fujitsu shall pay any invoiced amount by the twentieth (20th) day of the
calendar month which is two months after the month in which Fujitsu receives the
▇▇▇▇ invoice.
5. SPECIFICATIONS
The Parties shall develop and agree on detailed Final Specifications in
accordance with the Schedule. The Final Specifications shall be based on, and
not inconsistent with, the Target Specifications, which the Parties acknowledge
are less detailed than the Final Specifications but are otherwise final in all
material respects (except as otherwise provided in Exhibit C) as of the date of
this Agreement. ▇▇▇▇ shall have primary responsibility for identifying and
documenting all features which are to incorporated into the Final
Specifications. Fujitsu agrees to provide ▇▇▇▇ with reasonable assistance and
input regarding the development of the Final Specifications and to approve the
Final Specifications in accordance with the Schedule. Once delivered and
accepted hereunder, the Final Specifications shall be final in all material
respects, subject to such minor modifications as may be required to efficiently
implement the intended functions and performance characteristics of the Product,
and shall replace the Target Specifications. ▇▇▇▇' budget for performance of the
Services hereunder includes the cost of implementing such minor modifications
from time to time, but does not include the cost of implementing any ECRs, which
costs shall be charged in accordance with Section 4.2.
6. ACCEPTANCE AND REJECTION OF DELIVERABLES
6.1. General. The following procedures shall apply to the acceptance or
rejection of any Deliverable:
(a) Initial delivery of a Deliverable (the "Initial Deliverable")
will occur when ▇▇▇▇ delivers to a site in the United States or Japan designated
by Fujitsu a Deliverable that ▇▇▇▇ reasonably determines to conform to the
applicable Specifications therefor and that is in a form appropriate for review
and, if applicable, testing by Fujitsu, accompanied by a written statement
listing the items delivered and stating that they are ready for Fujitsu's review
and, if applicable, acceptance testing. Fujitsu, with the assistance of ▇▇▇▇ if
requested by Fujitsu, will review and, if applicable, test each Deliverable upon
delivery to determine, in accordance with the acceptance criteria specified for
such Deliverable on attached Exhibit B (the "Acceptance Criteria"), whether the
Deliverable conforms to the Specifications for such Deliverable. Within the
period specified for review of each Deliverable by Fujitsu on Exhibit B, Fujitsu
will provide ▇▇▇▇ with either written acceptance of such Deliverable or a
statement of Errors to be corrected or changed. The first shipment by Fujitsu of
the Product for revenue shall constitute final acceptance of the Product.
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(b) ▇▇▇▇ will promptly correct the Errors in any Deliverable set
forth in the statement of Errors and redeliver the Deliverable (a "Subsequent
Deliverable") to Fujitsu within fifteen (15) Fujitsu business days, or such
longer period as is reasonably required to correct such Error (not to exceed
seventy-five (75) business days in the aggregate) or as Fujitsu and ▇▇▇▇
otherwise agree is reasonable under the circumstances. Fujitsu will, within
fifteen (15) business days after such redelivery or such other period as is set
forth opposite such Deliverable in Exhibit B, provide ▇▇▇▇ with either written
acceptance or another statement of Errors. The procedure set forth in Section
6.1(a) and this Section 6.1(b) will be repeated until Fujitsu accepts the
Deliverable, agrees to an alternative acceptance arrangement with ▇▇▇▇, or
terminates this Agreement pursuant to Section 6.2.
6.2. Rejection.
(a) ▇▇▇▇ will have at least five opportunities to correct each Error
in a Deliverable, provided that the time expended to correct such Error shall
not exceed seventy-five (75) business days in the aggregate. If, after five
attempts, ▇▇▇▇ fails to deliver a Deliverable that either (i) contains no Errors
or otherwise meets the Acceptance Criteria or (ii) is nonetheless acceptable to
Fujitsu, Fujitsu may terminate this Agreement for cause pursuant to Section
13.2, or may continue to permit ▇▇▇▇ to correct the Deliverable. Fujitsu's
election to continue permitting ▇▇▇▇ to correct a Deliverable will not affect
Fujitsu's right to terminate this Agreement in accordance with this Section
6.2(a) if thereafter a Subsequent Deliverable has Errors.
(b) ▇▇▇▇ will inform Fujitsu as soon as possible if it believes it
will not be able to deliver a Deliverable, whether an Initial Deliverable or a
Subsequent Deliverable, on time. For each Deliverable that is delivered more
than thirty (30) days late (after adjustment for any Schedule modification
pursuant to Section 6.3) and for which there is an applicable milestone payment,
▇▇▇▇ will accrue a late delivery penalty equal to ten percent (10%) of such
milestone payment. In addition, if a Deliverable is more than one hundred and
twenty (120) days late (after adjustment for any Schedule modification pursuant
to Section 6.3), ▇▇▇▇ will accrue a late delivery penalty equal to an additional
ten percent (10%) and Fujitsu may, in its discretion, terminate this Agreement
pursuant to Section 13.2. For purposes of this Section 6.2(b), a Deliverable
will not be deemed delivered until accepted by Fujitsu after any corrections
required pursuant to Section 6.1, provided that if such Deliverable is
ultimately accepted by Fujitsu the period of Fujitsu's evaluation and acceptance
testing of such Deliverable shall not be counted in the respective thirty and
one hundred and twenty day periods.
(c) All accrued late delivery penalties shall be payable by ▇▇▇▇ to
Fujitsu at the time the final payment is due from Fujitsu hereunder (whether on
final acceptance of the Product or earlier termination). Such late delivery
penalties may be reduced as follows:
(i) if FCS occurs in accordance with the Schedule, no late
penalty shall be payable for any Deliverable;
(ii) if ▇▇▇▇ delivers the next subsequent Deliverable (the
"Next Deliverable") to a late Deliverable (the "Late Deliverable") on or before
the date set for delivery of the Next Deliverable on the Schedule, no late
delivery penalty shall be payable for the Late Deliverable;
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(iii) subject to subsection(iv) below, if the Next Deliverable
is also late but is not as late as the Late Deliverable, then the late delivery
penalty for the Late Deliverable shall be reduced by multiplying such late
delivery penalty by a fraction (i) the numerator of which is the number of days
by which the Next Deliverable was late and (ii) the denominator of which is the
number of days by which the Late Deliverable was late, provided that Fujitsu
shall still be entitled to charge any late delivery penalty otherwise applicable
to the Next Deliverable; and
(iv) if FCS does not occur in accordance with the Schedule but
is not as late as a Late Deliverable or the applicable Next Deliverable, then
subsection (iii) shall not apply and the late delivery penalty for such Late
Deliverable shall instead by reduced by multiplying such late delivery penalty
by a fraction (i) the numerator of which is the number of days by which FCS was
late and (ii) the denominator of which is the number of days by which the Late
Deliverable was late.
(d) Fujitsu shall be obligated to act reasonably and in good faith
in failing to accept or rejecting any Deliverable pursuant to this Agreement.
6.3. Modification of Schedule.
(a) If ▇▇▇▇ believes that a modification of the Schedule is
appropriate because of problems or events beyond ▇▇▇▇' reasonable control, ▇▇▇▇
may request a modification of the Schedule without the reduction of milestone
payments. Fujitsu will consider such a request in good faith, taking into
account all relevant factors, including the reasons for the requested
modification, Fujitsu's own schedule requirements and ▇▇▇▇' diligence in
performing the Services. In no event, however, will Fujitsu be obligated to
agree to any such request (or to a related waiver of or modification in the
reduction of milestone payments) or to consider increasing the milestone
payments to ▇▇▇▇.
(b) If Fujitsu submits an ECR to ▇▇▇▇ which ▇▇▇▇ reasonably believes
will require a modification to the Schedule, the Parties shall discuss in good
faith and agree on the required modification. Fujitsu acknowledges that the
implementation of an ECR may result in Schedule changes due to design changes
and dependencies and resource conflicts.
7. SUPPORT
7.1. Error Correction and Support.
(a) ▇▇▇▇ will provide Fujitsu with technical assistance relating to
the Deliverables and the Product from and after the delivery of the first
Deliverable on the terms and conditions set forth in this Section 7.1. Such
support will include correcting promptly any Errors in the Deliverables and the
Product, supplying corrections to Fujitsu in a timely fashion and correcting and
updating any documentation ("Error Corrections"), and conducting failure
analysis, providing software patches and answering questions that Fujitsu may
have regarding the Deliverables and the Product ("Other Support"). Following
final acceptance by Fujitsu of the Product, support shall no longer be provided
with respect to any Deliverable other than the Product except to the extent any
such Deliverable is not superseded by the Product.
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(b) ▇▇▇▇ shall provide the following support to Fujitsu:
(i) prior to final acceptance of the Product, ▇▇▇▇ will
provide Fujitsu with Error Corrections and Other Support free of charge;
(ii) after final acceptance of the Product, if Fujitsu or any
of its Affiliates purchase Products or Derivative Products from ▇▇▇▇, ▇▇▇▇
shall provide Error Corrections for such Products or Derivative Products
to Fujitsu on the terms and conditions set forth in the purchase
agreements for such Products or Derivative Products;
(iii) after final acceptance of the Product, if Fujitsu and
its Affiliates manufacture the Product or a Derivative Product and Fujitsu
and ▇▇▇▇ reasonably agree on Error Corrections to be made, ▇▇▇▇ shall
provide such Error Corrections to Fujitsu at half of the costs actually
incurred by ▇▇▇▇ in providing such Error Corrections, provided that ▇▇▇▇
shall have no obligation to make Error Corrections not agreed by ▇▇▇▇ and
Fujitsu shall have no obligation to pay for Error Corrections not agreed
by Fujitsu and, provided further, that subsection (ii) above shall apply,
in lieu of this subsection (iii), to any Error Corrections required for
Products or Derivative Products purchased by Fujitsu from ▇▇▇▇;
(iv) for the first twelve (12) month period following final
acceptance of the Product, (i) ▇▇▇▇ shall provide up to 20 hours per month
of Other Support without charge, (ii) ▇▇▇▇ shall provide an additional 140
hours per month of Other Support on ▇▇▇▇' standard terms for the provision
of comparable technical support to third parties, as in effect from time
to time, and (iii) the Parties shall separately agree on the terms of any
Other Support beyond 160 hours per month; and
(v) during the second and third twelve (12) month periods
following final acceptance of the Product, ▇▇▇▇ shall provide up to 160
hours per month of Other Support on ▇▇▇▇' standard terms for the provision
of comparable technical support to third parties, as in effect from time
to time.
(c) Unless otherwise agreed between ▇▇▇▇ and Fujitsu, any support to
be provided to Fujitsu pursuant to this Section 7.1 shall be provided only to
the processor group of Fujitsu which will in turn provide support to any other
group of Fujitsu, except when the processor group reasonably determines that it
is not appropriate for it to act as an intermediary in the provision of such
support. ▇▇▇▇ shall have no obligation to provide any technical assistance or
support other than as specifically set forth in this Section 7.1 or elsewhere in
this Agreement or after any termination of this Agreement.
7.2. Training. The Parties agree that ▇▇▇▇ shall train, in Austin,
without charge one engineer designated by Fujitsu to provide support functions
within Fujitsu related to the Deliverables and the Product (in addition to the
support to be provided by ▇▇▇▇ pursuant to Section 7.1). Fujitsu agrees to
provide at its expense a file server and workstations, together with any
necessary third party software licenses, at ▇▇▇▇ with sufficient capacity to
sustain the transfer to Fujitsu of the Deliverables and to be used for the
acceptance of the Deliverables and Product, training and support functions.
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7.3. Disclosure. At any time after final acceptance by Fujitsu of the
last of the Deliverables accepted by Fujitsu, ▇▇▇▇ and Fujitsu will each
promptly disclose to the other Party in writing at no charge any Errors,
including, but not limited to, problems with functionality or performance, in
such Deliverables or the Product of which such Party becomes aware.
8. OWNERSHIP RIGHTS AND LICENSE
8.1. Joint Ownership and License.
(a) All right, title and interest in the Specifications,
Deliverables and Product to the extent created, conceived or developed by ▇▇▇▇
pursuant to this Agreement (including any discoveries created, conceived or
developed by ▇▇▇▇ in consultation with Fujitsu) or by Fujitsu and/or HaL
engineers working with ▇▇▇▇ pursuant to Section 3.3, including, but not limited
to, (i) the Licensable Viper Design Methodology (ii) all modifications and
additions (including Error corrections) to the Specifications, Deliverables and
Product (including any prototypes, work in progress, documentation or other
materials related thereto) made during the term of this Agreement, (iii)
worldwide ownership of all Intellectual Property Rights with respect to the
Specifications, Deliverables and Product (including any prototypes, work in
progress, documentation or other materials related thereto) and (iv) any ideas,
concepts, techniques, inventions, creations, works, processes, designs or
methods that are embodied therein or that are necessary for the design,
development, implementation, assembly, testing, operation, modification or other
use thereof, (but expressly excluding the Non-Licensable Design Methodology, the
Existing Viper Technology, the Pre-Viper Technology, the Sun Technology and the
Fujitsu Technology) (collectively, the "New Technology"), is hereby vested
equally in ▇▇▇▇ and Fujitsu as joint owners and each Party hereby assigns, and
agrees to assign, to the other Party an irrevocable, worldwide, nonexclusive,
perpetual, royalty-free undivided fifty percent (50%) interest in and to all of
the New Technology without any obligation to account to or obtain the consent of
the other Party for the exercise of any rights by a Party, the grant of any
license by a Party or otherwise with respect to the New Technology except as
follows:
**
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(iv) neither Party shall, without the prior written consent of
the other Party, sell, convey, transfer or assign, in whole or in part,
its ownership interest in the New Technology.
For the avoidance of doubt, following the sixth anniversary of the
execution of this Agreement, each Party shall have the unrestricted right to
grant licenses of the New Technology without any obligation to provide payment
in connection with any such license to the other Party.
(b) All right, title and interest is hereby vested equally in ▇▇▇▇
and Fujitsu as joint owners and each Party hereby assigns, and agrees to assign,
to the other Party an irrevocable, worldwide, nonexclusive, perpetual,
royalty-free undivided fifty percent (50%) interest in and to all of the
Non-Licensable Viper Design Methodology without any obligation to account to or
obtain the consent of the other Party for the exercise of any rights by a Party
or otherwise with respect to the Non-Licensable Viper Design Methodology, except
that neither Party shall have the right to grant a license in the Non-Licensable
Viper Design Methodology to any Person.
(c) Fujitsu acknowledges that, as between ▇▇▇▇ and Fujitsu, ▇▇▇▇ is
the sole owner of the Existing Viper Technology and the Pre-Viper Technology.
▇▇▇▇ hereby grants to Fujitsu an irrevocable, worldwide, nonexclusive,
nontransferable, perpetual, royalty-free license to make, use, sell, reproduce,
modify, prepare Derivative Products thereof, and distribute Products and
Derivative Products thereof incorporating the Existing Viper Technology, with
the right to grant sublicenses of such rights in connection with licenses of the
New Technology, except as such rights are limited pursuant to this Section 8.
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▇▇▇▇ agrees not to grant a license in the Existing Viper Technology except with
the prior written consent of Fujitsu or in connection with a license of the New
Technology. For the avoidance of doubt and subject to the terms of any other
agreement between the Parties with respect to the Pre-Viper Technology, the
Parties agree that ▇▇▇▇ shall have the right to exploit the Pre-Viper Technology
without restriction (including without limitation the right to create derivative
works and the right to grant licenses thereof on such terms as ▇▇▇▇ may
determine in its sole discretion, provided that the creation of any such
derivative work or the grant of any such license by ▇▇▇▇ shall constitute a
representation by ▇▇▇▇ that such derivative work is not a Derivative Product or
such license is not a license of Viper Technology, as the case may be) and ▇▇▇▇
does not hereby grant any rights to Fujitsu in the Pre-Viper Technology.
(d) ▇▇▇▇ acknowledges that, as between ▇▇▇▇ and Fujitsu, Fujitsu is
the sole owner of the Fujitsu V9 and UPA-1 Test Suites. Fujitsu hereby grants to
▇▇▇▇ an irrevocable, worldwide, nonexclusive, nontransferable, perpetual,
royalty-free license to use the Fujitsu V9 and UPA-1 Test Suites in the
development or manufacture of Products and Derivative Products thereof, with the
right to grant sublicenses of such rights in connection with licenses of the New
Technology, except as such rights are limited pursuant to this Section 8. ▇▇▇▇
shall be responsible for modifying the Fujitsu V9 and UPA-1 Test Suites for the
▇▇▇▇ environment and Fujitsu shall provide without charge reasonable support to
enable ▇▇▇▇ to do so and to utilize the Fujitsu V9 and UPA-1 Test Suites.
(e) All right, title and interest in the New Technology, including
any work in progress, prototypes, internal documentation and other materials
related thereto, and any ideas, concepts, techniques, inventions, creations,
works, processes, designs or methods intended to be embodied therein, shall vest
jointly in the Parties when and as created, conceived or developed, without the
need for any further act by either Party, and whether or not delivered
hereunder, and regardless of which Party created, conceived or developed the New
Technology. Each Party will take all steps necessary (i) to convey to the other
Party joint ownership rights in the New Technology, including executing or
causing to be executed assignments and all other instruments and documents as
the other Party may consider necessary or appropriate to carry out the intent of
this Section 8.1(e) and, (ii) subject to Section 8.4, to establish, evidence,
maintain, defend and enforce the Intellectual Property Rights therein.
8.2. Derivative Products. Notwithstanding Section 8.1, all right, title
and interest in any Derivative Product developed by either Party after the
acceptance by Fujitsu of the Product or earlier termination of this Agreement,
including, but not limited to, worldwide ownership of all Intellectual Property
Rights embodied in such Derivative Product, other than the Existing Viper
Technology, the Fujitsu Technology, the New Technology, the Pre-Viper
Technology, the Viper Design Methodology and the Sun Technology, shall belong
solely to the Party developing such Derivative Product. Neither Party shall have
the obligation to grant a license in any such Derivative Product
to the other Party. If Fujitsu begins the design or tapeout of a Derivative
Product prior to its final acceptance of the Product, it shall do so at its own
risk. The limitations set forth in Section 8.3 with respect to the sale and
distribution of the Product shall not apply to Derivative Products other than
Related Products.
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8.3. Right to Distribute Product and Derivative Products.
(a) Without limiting the generality of Section 8.1, each Party shall
have the right to make, use, sell, reproduce, modify, and distribute without
restriction hereunder (i) any Derivative Product developed by such Party other
than a Related Product and, (ii) except as set forth in Section 8.3(b), the
Product and any Related Products, with, in either case, no obligation of payment
to the other Party except as provided in Section 3.1.
(b) Subject to Section 13.4, the following limitations shall apply
to the sale of Products and Related Products:
(i) Fujitsu shall have the exclusive right to sell Products
and UPA-1-based Related Products internally to itself and its Affiliates.
(ii) ▇▇▇▇ shall have the exclusive right to sell Products and
Related Products other than Systems to all third parties, other than
Fujitsu and its Affiliates, provided that Fujitsu shall have the
non-exclusive right to sell Products and UPA-1-based Related Products to
customers of Fujitsu and its Affiliates as upgrades to systems purchased
in Japan from Fujitsu or its Affiliates.
(iii) Notwithstanding the provisions of Sections 8.3(b)(i) and
8.3(b)(ii), both Parties shall have the right to sell Systems (including
without limitation Systems incorporating Products or Related Products) to
any Person.
(iv) If either Party does not complete a UPA-2 based Related
Product within two (2) years after FCS of the Product (or, in the event
the Services are not completed, within three (3) years after Tapeout of
the Product) and the other Party does complete a UPA-2 based Related
Product within such period, the other Party shall not be subject to the
restrictions of this Section 8.3(b) with respect to its UPA-2 based
Related Product. For purposes of this Section 8.3(b)(iv), "completion" of
a UPA-2 based Related Product shall mean FCS of that Related Product.
(c) Notwithstanding the provisions of Section 8.1(a), the Parties
shall have the right to grant such licenses in the New Technology (and
corresponding sublicenses in the Existing Technology and the Fujitsu Technology)
to end users in connection with the sale of Products or Derivative Products as
are reasonably required in connection with the use of the Products or Derivative
Products, as the case may be.
(d) Fujitsu may elect, in its sole discretion, to purchase from ▇▇▇▇
any Products or Related Products that ▇▇▇▇ is currently manufacturing for
commercial sale or to permit any of its Affiliates to do so. In the event that
Fujitsu or its Affiliates wish to purchase Products or Related Products from
▇▇▇▇, ▇▇▇▇ agrees to sell Products or Related Products to Fujitsu and its
Affiliates on a most favored customer basis, subject to ▇▇▇▇' prior commitments
to other customers. The terms and conditions of such sales shall be subject to a
separate purchase agreement to be negotiated between Fujitsu and ▇▇▇▇.
8.4. Protection of Intellectual Property Rights; Cooperation.
(a) The Parties agree to cooperate to obtain, maintain, protect,
enforce and defend (collectively, "Protect") all Intellectual Property Rights in
the New Technology (the
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"Co-Owned Intellectual Property"). Each Party shall give the other Party all
reasonable assistance in obtaining such proprietary rights protection and in
preparing and prosecuting any patent, copyright, mask work or other filing or
application made by the other Party. The Parties shall share on a 50-50 basis
the expenses of obtaining such protection and preparing and prosecuting such
filings and applications in all jurisdictions, in accordance with the
Intellectual Property Protection Plan.
(b) No later than September 30, 1997, ▇▇▇▇ shall submit to Fujitsu
for its approval a plan for the protection of the Co-Owned Intellectual Property
in the United States and outside of the United States and Japan, and Fujitsu
shall submit to ▇▇▇▇ for its approval a plan for the protection of the Co-Owned
Intellectual Property in Japan (such plans collectively, the "Intellectual
Property Protection Plan"). The Intellectual Property Protection Plan will,
among other things, provide for each Party to provide periodic updates to the
other on its efforts in obtaining and maintaining such protection, for
coordination of filings of the same applications in multiple countries and for
the Parties to discuss as needed any changes to the Plan. The Intellectual
Property Plan will be modified and updated as needed on a quarterly basis to
reflect new inventions, new filings and other relevant changes. Subject to each
Party complying with such plan and acting diligently to protect the interests of
both Parties in the Co-Owned Intellectual Property, ▇▇▇▇ shall have the
exclusive right to apply or register for any relevant form of legal protection
(including patent or copyright protection) for the Co-Owned Intellectual
Property in the United States, Fujitsu shall have such rights in Japan and the
Parties shall share such rights outside of the United States and Japan in
accordance with the Intellectual Property Protection Plan.
(c) ▇▇▇▇ and Fujitsu shall also have the exclusive right to bring
infringement actions or proceedings in the United States and Japan,
respectively, against a third party with respect to the Co-Owned Intellectual
Property. Each Party agrees to notify the other Party in writing upon its
discovery of any unauthorized use or infringement of the Co-Owned Intellectual
Property. If the Party with the right to bring such action fails to exercise its
right to bring an infringement action or proceeding against any third party
within a reasonable time after discovery of any unauthorized use or infringement
of the Co-Owned Intellectual Property by such Party or delivery of such
notice by the other Party, or fails to diligently pursue such cause of action,
the Parties agree to meet in good faith to agree upon an appropriate course of
action. In the event that the Parties do not reach an agreement within thirty
(30) days of beginning such discussions, the Party without the right to bring
the cause of action shall have the right to demand that the other Party bring or
diligently pursue such cause of action. In the event that the Party with the
right to bring the cause of action continues to fail to do so (or continues to
fail to diligently pursue such cause of action), the right to such cause of
action shall be deemed assigned to the other Party. In such event, the other
Party may pursue such cause of action at its sole cost and expense and may
retain for its own account any and all amounts recovered.
8.5. Non-Assertion. Fujitsu agrees not to ▇▇▇ or bring any judicial,
administrative or other proceeding of any kind against ▇▇▇▇, its Subsidiaries,
its joint development partner granted a license pursuant to Section 8.1(a)(i)(A)
or end-users for infringement of Fujitsu Patents on account of the performance,
during the Immunity Period, of the Services or the manufacture, use, sale or
distribution, during the Immunity Period, of the Product or, with respect to the
same Fujitsu Patents as those that may be utilized in the Product or in any
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technology that the Parties agree is Viper Technology, any Derivative Product
fifty percent (50%) or more of which (including the Viper Microprocessor Core if
incorporated therein) was designed by ▇▇▇▇ or its Subsidiary. "Fujitsu Patents"
means all patents and patent applications throughout the world owned directly or
beneficially by Fujitsu at any time prior to the final acceptance of the Product
or earlier termination of this Agreement, and the "Immunity Period" shall
commence on the Effective Date and shall terminate on the tenth anniversary of
the date of execution of this Agreement.
9. RIGHT TO DEVELOP INDEPENDENTLY
Nothing in this Agreement will impair either Party's right to acquire,
license, develop for itself or have others develop for it similar products or
technology performing the same or similar functions as the product or technology
contemplated by this Agreement, or to market and distribute such similar
products or technology in addition to, or in lieu of, the Product and its
Derivative Products; provided that such Party shall at all times comply fully
with the confidentiality and limited use provisions and any other applicable
covenants contained in this Agreement.
10. WARRANTIES AND INDEMNIFICATION
10.1. Warranties By ▇▇▇▇. ▇▇▇▇ represents and warrants that it has the
unrestricted right to disclose, use, and grant and assign (without liability to
others) all the subject matter, including ideas, concepts, techniques,
inventions, creations, works, processes, designs and methods, other than the Sun
Technology and the Fujitsu Technology and any patent rights of third parties,
that ▇▇▇▇ will disclose or use in its performance of the Services or that ▇▇▇▇
will grant and assign under this Agreement. ▇▇▇▇ represents and warrants that
the Pre-Viper Design Methodology and the other Pre-Viper Technology is not
necessary for the exercise by Fujitsu of its rights hereunder. ▇▇▇▇ further
represents and warrants that: (a) ▇▇▇▇ has full power and authority to enter
into this Agreement, to carry out its obligations under this Agreement and to
grant the rights granted to Fujitsu hereunder; (b) this Agreement has been duly
executed and delivered by ▇▇▇▇ and constitutes a legally valid and binding
obligation of ▇▇▇▇, enforceable against ▇▇▇▇ in accordance with its terms; (c)
the execution and delivery by ▇▇▇▇ of, and the performance by ▇▇▇▇ of its
obligations under, this Agreement do not and will not (i) conflict with or
contravene the certificate of incorporation or bylaws of ▇▇▇▇ or (ii) result in
a breach of or constitute a default under any agreement, instrument or order to
which ▇▇▇▇ or any of its assets is subject; (d) the Deliverables and Product
(including any prototypes, work in progress, documentation or other materials
related thereto) do not and will not infringe any Intellectual Property Rights
of others other than patent rights and, to ▇▇▇▇' knowledge, do not infringe any
patent rights of others; and (e) ▇▇▇▇ has not previously granted and will not
grant to any third party any rights in the Deliverables or Product that are
inconsistent with the rights granted to Fujitsu hereunder.
The Viper Design Methodology is provided to Fujitsu hereunder by ▇▇▇▇ "AS
IS" without representation or warranty of any kind by ▇▇▇▇.
10.2. Warranties By Fujitsu. Fujitsu represents and warrants that it has
the unrestricted right to disclose, use, and grant and assign to ▇▇▇▇ (without
liability to others) the Fujitsu Technology (including without limitation any
Intellectual Property Rights of HaL included therein) and the right to
sublicense to ▇▇▇▇ the Sun Technology in accordance with
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the terms of the Sublicense Agreement. Fujitsu represents and warrants that: (a)
Fujitsu has full power and authority to enter into this Agreement, to carry out
its obligations under this Agreement and to grant the rights granted to ▇▇▇▇
hereunder; (b) this Agreement has been duly executed and delivered by Fujitsu
and constitutes a legally valid and binding obligation of Fujitsu, enforceable
against Fujitsu in accordance with its terms; (c) the execution and delivery by
Fujitsu of, and the performance by Fujitsu of its obligations under this
Agreement do not and will not (i) conflict with or contravene the certificate of
incorporation or bylaws of Fujitsu or (ii) result in a breach of or constitute a
default under any agreement, instrument or order to which Fujitsu or any of its
assets is subject; and (d) Fujitsu has not previously granted and will not grant
to any third party any rights in the Fujitsu Technology or the Sun Technology
that are inconsistent with the rights granted to ▇▇▇▇ hereunder.
The Fujitsu V9 and UPA-1 Test Suites are provided to ▇▇▇▇ hereunder by
Fujitsu "AS IS" without representation or warranty of any kind by Fujitsu.
10.3. Indemnity and Duty to Correct.
(a) Indemnity by ▇▇▇▇. ▇▇▇▇ will indemnify, hold harmless and, at
Fujitsu's request, defend Fujitsu, and any divisions, Subsidiaries, Affiliates,
directors, officers, employees, agents, distributors, customers, assignees and
licensees of Fujitsu, from and against any claim, action or suit brought by a
third party unrelated to Fujitsu to the extent that the same is based on (i) a
claim that the Services, the Product (including any prototypes, work in
progress, documentation or other materials related thereto) or any Deliverable
infringes or misappropriates any Intellectual Property Right of a third party,
or (ii) any breach or alleged breach by ▇▇▇▇ of any representation, warranty or
covenant made, or obligation assumed, by ▇▇▇▇ pursuant to this Agreement,
including, but not limited to, all liabilities, costs, judgments, expenses and
reasonable fees of attorneys and other professionals that are attributable to
such claim, action or suit. Fees of attorneys and other professionals and
related costs will be payable when and as incurred. Fujitsu will give ▇▇▇▇
reasonably prompt notice in writing of any such claim, action or suit. Each
Party will provide the other with reasonable cooperation and information to
assist in defense of the claim, action or suit. If Fujitsu elects to have ▇▇▇▇
defend such claim, action or suit, Fujitsu nonetheless will have the right, at
Fujitsu's expense, to appoint separate counsel to participate in such claim,
action or suit. If Fujitsu elects to defend itself, ▇▇▇▇ will nonetheless have
the right, at ▇▇▇▇' own expense, to appoint separate counsel to participate in
any such claim, action or suit. ▇▇▇▇ will not enter into any settlement of any
claim, action or suit described in this Section 10.3(a) without the prior
written consent of Fujitsu, which consent will not be unreasonably withheld.
(b) Indemnity by Fujitsu. Fujitsu will indemnify, hold harmless and, at
▇▇▇▇' request, defend ▇▇▇▇, and any Subsidiaries, Affiliates, directors,
officers, employees, agents, distributors, customers, assignees and licensees of
▇▇▇▇, from and against any claim, action or suit brought by a third party
unrelated to ▇▇▇▇ to the extent that the same is based on any breach or alleged
breach by Fujitsu of any representation, warranty or covenant made, or
obligation assumed, by Fujitsu pursuant to this Agreement, including, but not
limited to, all liabilities, costs, judgments, expenses and reasonable fees of
attorneys and other professionals that are attributable to such claim, action or
suit. Fees of attorneys and other professionals and related costs will be
payable when and as incurred. ▇▇▇▇ will give Fujitsu reasonably prompt notice in
writing of any such claim, action or suit. Each Party will provide the other
with reasonable cooperation and information to assist in defense of the claim,
action or suit.
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If ▇▇▇▇ elects to have Fujitsu defend such claim, action or suit, ▇▇▇▇
nonetheless will have the right, at ▇▇▇▇' expense, to appoint separate counsel
to participate in such claim, action or suit. If ▇▇▇▇ elects to defend itself,
Fujitsu will nonetheless have the right, at Fujitsu's own expense, to appoint
separate counsel to participate in any such claim, action or suit. Fujitsu will
not enter into any settlement of any claim, action or suit described in this
Section 10.3(b) without the prior written consent of ▇▇▇▇, which consent will
not be unreasonably withheld.
(c) Duty to Correct. If, during the ten year period beginning on the
Effective Date, the Product becomes the subject of a claim, action or suit
described in Section 10.3(a), at Fujitsu's request ▇▇▇▇, at ▇▇▇▇' expense and
election, will either: (i) procure for Fujitsu the past and future right to
make, use, sell, reproduce, modify, prepare Derivative Products thereof, and
distribute Products and Derivative Products thereof, with rights to authorize
others to do the same to the extent otherwise permitted by Section 8; (ii)
replace or modify the Product with another product that is noninfringing,
without loss of functionality, performance, quality and interoperability as the
infringing Product; or (iii) if such past and future rights cannot be procured
or the Product cannot be replaced or modified at reasonable expense, reimburse
Fujitsu for the total amount paid by Fujitsu under this Agreement. The
obligations of this Section 10.3(c) are in addition to the warranty and other
rights that may otherwise be available to Fujitsu under this Agreement or under
applicable law.
10.4. Limitation of Liability. EXCEPT AS PROVIDED IN THIS SECTION 10 OR
OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY IS MAKING (OR WILL
BE DEEMED TO MAKE) ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT
OR LOSS OF USE, WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT UNLESS OTHERWISE SPECIFICALLY AND EXPLICITLY PROVIDED HEREIN,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO
EVENT SHALL EITHER PARTY'S AGGREGATE CUMULATIVE LIABILITY FOR CLAIMS OF THE
OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (OTHER THAN ANY
CLAIMS PURSUANT TO SECTION 10.3 WHICH SHALL NOT BE SO LIMITED) EXCEED, IN THE
CASE OF ANY LIABILITY OF ▇▇▇▇, THE AGGREGATE AMOUNT PAID UNDER THIS AGREEMENT BY
FUJITSU OR, IN THE CASE OF ANY LIABILITY OF FUJITSU, THE AGGREGATE COSTS
INCURRED BY ▇▇▇▇ IN DEVELOPING THE PRODUCTS AND DELIVERABLES HEREUNDER (OTHER
THAN ANY PORTION OF SUCH AMOUNTS PROVIDED BY FUJITSU). THIS LIMITATION OF
LIABILITY SHALL APPLY TO ANY CLAIM OR CAUSE OF ACTION, WHETHER IN CONTRACT OR
TORT, UNDER ANY THEORY.
11. CONFIDENTIALITY
11.1. Use Restrictions. Each Party will protect the other's Confidential
Information from unauthorized dissemination and use with the same degree of care
that such Party uses to protect its own like information. Neither Party will use
the other's Confidential Information or disclose to third parties the other's
Confidential Information, except as and to the extent
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reasonably necessary in connection with the licenses and sublicenses permitted
by this Agreement or the exercise of other rights contemplated by this
Agreement, and where appropriate subject to similar confidentiality
restrictions, or to the extent specified in the prior written consent of the
other Party, or necessary to comply with applicable law or the valid order of a
court of competent jurisdiction, provided that such Party will promptly inform
the other Party of such obligation to disclose and cooperate with the other
Party in minimizing the disclosure, including seeking a protective order,
necessary to exercise or enforce its rights pursuant to this Agreement, or
specified in Section 11.2. Fujitsu agrees not to disclose the Viper Detailed
Schedule, dated May 12, 1997, and any updates thereto (collectively, the
"Detailed Schedules") other than on a need-to-know basis within Fujitsu and HaL,
provided that neither this limitation nor any other part of this Section 11
shall limit Fujitsu's right to obtain Confidential Information from ▇▇▇▇.
11.2. Limited Disclosure. Notwithstanding the terms of Section 11.1, ▇▇▇▇
hereby consents to Fujitsu's disclosure of ▇▇▇▇ Confidential Information (other
than the Detailed Schedules which shall be provided only on a need-to-know
basis) to HaL while HaL is a Subsidiary of Fujitsu and to the extent necessary
to carry out Fujitsu's obligations hereunder or to facilitate the participation
of HaL engineers in performance of the Services pursuant to Section 3.3. Each
Party consents to the disclosure by the other Party of the terms, conditions or
text of this Agreement to the extent required by law, the regulations of any
governmental agency or the order of any court or governmental agency. In
addition, the Parties anticipate that ▇▇▇▇ may issue a press release describing
its agreement to provide the Services. Fujitsu will have the right to
pre-approve in writing any such press release or other communications with third
parties relating to the Services or Product, which approval will not be
unreasonably withheld. Also, without the consent of the other Party each Party
shall have the right to disclose, to the extent reasonably requested by a
potential customer, summaries and data sheets based upon or derived from the
Specifications ("Customer Materials"), to such potential customer under usual
and customary non-disclosure arrangements. In the event that either Party
discloses Customer Materials, it shall indemnify the other Party against any
claims brought by a recipient of Customer Materials and such indemnification
shall not be limited by the provisions of Section 10.4.
12. TERM
This Agreement will commence on the Effective Date and will continue until
the earlier of (a) completion of all Services and support by ▇▇▇▇ as specified
in this Agreement, or (b) termination as provided in this Agreement, subject in
each instance to the survival of certain provisions in accordance with Section
13.3.
13. TERMINATION
13.1. Termination by Either Party. Either Party will have the right to
terminate this Agreement immediately upon written notice at any time if:
(a) The other Party (i) is in breach of any material warranty, term,
condition or covenant of this Agreement, or (ii) commits any other breach of
this Agreement that individually or in the aggregate could have a material
adverse effect on the other Party's rights hereunder, in each instance other
than those contained in Section 11 and other than delivery, acceptance or
rejection of the Product or any Deliverable, which shall be exclusively
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governed by the provisions of Sections 6 and 13.2, and in either case fails to
cure the breach within thirty (30) days after written notice of the breach or
such longer period as may be provided under this Agreement or agreed in writing
by the Parties;
(b) The other Party is in material breach of any warranty, term,
condition or covenant of Section 11; or
(c) The other Party (i) undergoes a material adverse change in its
financial condition after the date of execution of this Agreement; (ii) fails to
pay its debts or perform its obligations in the ordinary course of business as
they mature; (iii) admits in writing its insolvency or inability to pay its
debts or perform its obligations as they mature; or (iv) becomes the subject of
any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution,
receivership, attachment or composition or general assignment for the benefit of
creditors that is not dismissed within sixty (60) days after the institution
thereof.
13.2. Termination by Fujitsu. In addition, Fujitsu may terminate this
Agreement as and to the extent specifically provided in Section 6. Any such
termination shall become effective upon ten (10) days' prior written notice from
Fujitsu to ▇▇▇▇.
13.3. Effect of Termination. Upon the expiration or earlier termination
of this Agreement, ▇▇▇▇ immediately will deliver to Fujitsu the original or a
copy of all work in progress with respect to the Services, Deliverables and
Product, including all versions and components thereof, and either Party at the
request of the other Party will confirm in writing and provide appropriate
assignments, instruments and other documents in accordance with Section 8.1 and
the Parties' joint ownership rights in the New Technology and the Non-Licensable
Viper Design Methodology and Fujitsu's rights in the Existing Viper Technology.
Also upon expiration or earlier termination of this Agreement, each Party will
be released from all obligations and liabilities to the other occurring or
arising after the date of such expiration or earlier termination, except that
the provisions of Sections 1 and 9 through 14 will survive expiration or earlier
termination. Subject to Section 13.4, the provisions of Section 8 will also
survive expiration or earlier termination except that, in the event of
termination, the restrictions set forth in Section 8.1(a)(iii) shall not apply
to the Party with the right to terminate the Agreement pursuant to Section 13.1
or Section 13.2 (meaning that such Party shall not be obligated to make any
payment to the other Party for any license of the New Technology). Expiration or
earlier termination will not relieve ▇▇▇▇ or Fujitsu from any liability arising
from any breach of this Agreement. Neither Party will be liable to the other for
damages of any kind solely as a result of terminating this Agreement in
accordance with its terms, and termination of this Agreement by a Party will be
without prejudice to any other right or remedy of such Party under this
Agreement or applicable law.
13.4. Option to Complete; Termination of Sales Restrictions. Without
limitation of the generality of the rights set forth in Section 8,
(a) in the event of any termination of this Agreement by either
Party pursuant to Section 13.1 or Section 13.2 prior to completion of all
Services, either Party will have the option to complete, or to engage any third
party to complete, development of the Product and either Party shall have the
right to grant such third party a license in, in the case of Fujitsu, the
Existing Viper Technology and the New Technology and, in the case of ▇▇▇▇,
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the Fujitsu Technology and the New Technology to develop the Product for such
Party without the consent of, or any payment to, the other Party notwithstanding
the restrictions set forth in Section 8.1; and
(b) the limitations set forth in Section 8.3 shall be terminated in
the event of termination of this Agreement by either Party pursuant to Section
13.1 or Section 13.2 (i) prior to Tapeout, or (ii) following Tapeout but prior
to completion of all services if (A) ▇▇▇▇ ceases business operations and such
cessation continues for a period of three months or more or (B) ▇▇▇▇ otherwise
fails to complete development of the Product within three months following the
date on which Fujitsu has completed development of the Product.
13.5. Payments by Fujitsu.
(a) In the case of termination for cause by Fujitsu other than for
late delivery of any Deliverable, upon delivery by ▇▇▇▇ of the work in progress
described in Section 13.3, Fujitsu will pay to ▇▇▇▇ a pro rata portion of the
next scheduled milestone payment. Such pro rata amount shall be calculated by
multiplying such scheduled payment by a fraction (i) the numerator of which is
the number of days elapsed since the last milestone payment and (ii) the
denominator of which is the number of days from the last milestone payment until
the next scheduled milestone payment.
(b) In the case of termination for cause by Fujitsu for late
delivery of any Deliverable, upon delivery by ▇▇▇▇ of the work in progress
described in Section 13.3, Fujitsu will pay to ▇▇▇▇ 50% of the next scheduled
milestone payment.
(c) Other than as set forth in the subsection (a) or (b), Fujitsu's
sole monetary obligation after termination will be to pay ▇▇▇▇ the fee set forth
in Exhibit A for all milestones fully completed by ▇▇▇▇ and Deliverables
accepted by Fujitsu pursuant to the terms of this Agreement.
14. GENERAL
14.1. No Other Obligations. Without limitation of the generality of
Section 9, implied or otherwise, neither Party has any obligation or duty to the
other Party with respect to the matters described herein, or relating to the
subject matter hereof except as expressly set forth in this Agreement. Without
limitation of the generality of the foregoing, subject to Section 8.3 and the
other provisions of this Agreement, either Party may market, or not market at
all, the Product and its Derivative Products, or any components thereof, in any
manner that such Party chooses.
14.2. Relationship of Parties. ▇▇▇▇ is an independent contractor. Neither
Party nor such Party's employees, consultants, contractors or other personnel
are agents, employees or joint venturers of the other Party, nor do they have
any authority to bind the other Party by contract or otherwise to any
obligation. They will not represent to the contrary, either expressly,
implicitly, by appearance or otherwise. ▇▇▇▇ will determine, in ▇▇▇▇' sole
discretion, the manner and means by which the Services are accomplished, subject
to the express condition that ▇▇▇▇ will at all times comply with applicable law
and the terms of this Agreement.
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14.3. Export Control. Notwithstanding any other provision of this
Agreement to the contrary, each of the Parties agrees that no products, items,
commodities or technical data or information obtained from a Party nor any
direct product of such technical data or information is intended to or shall be
exported or reexported, directly or indirectly, to any destination restricted or
prohibited by applicable law without necessary authorization by the relevant
governmental authority, including (without limitation) the Japanese Ministry of
International Trade and Industry, the United States Bureau of Export
Administration (the "BEA") or other governmental authorities of the United
States with jurisdiction with respect to export matters.
14.4. Taxes and Benefits. It is ▇▇▇▇' obligation to report as income and
pay all taxes with respect to all compensation received by ▇▇▇▇ pursuant to this
Agreement and pay all taxes due on such compensation. ▇▇▇▇ will indemnify
Fujitsu against and hold it harmless from any obligation imposed on Fujitsu to
pay any sales or use taxes, withholding taxes, social security, unemployment
insurance, workers' compensation insurance, disability insurance or similar
items, including interest and penalties thereon, in connection with any payments
made to ▇▇▇▇ by Fujitsu pursuant to this Agreement.
14.5. Assignment. The rights and liabilities of the Parties hereto will
bind and inure to the benefit of their respective assignees and successors,
provided that neither Party may assign or delegate its obligations under this
Agreement either in whole or in part, whether voluntarily, by operation of law
or otherwise except as otherwise agreed in writing by the other Party. Any
attempted assignment in violation of the provisions of this Section 14.5 will be
void.
14.6. Equitable Relief. Because in connection with the performance of
this Agreement, each Party will have access to and become acquainted with
confidential and proprietary information of the other Party, the unauthorized
use or disclosure of which would cause irreparable harm and significant injury
which would be difficult to ascertain and which would not be compensable by
damages alone, each Party hereby agrees that the other Party will have the
right, pending resolution of a dispute in accordance with Section 14.9 or to the
extent necessary to enforce an equitable remedy awarded by an arbitrator in
accordance with Section 14.9, to enforce this Agreement and any of its
provisions by injunction, specific performance or other equitable relief without
prejudice to any other rights and remedies that such Party may have for breach
of this Agreement.
14.7. Bankruptcy Provisions. All licenses and other rights granted under
or pursuant to this Agreement are, and shall otherwise be deemed to be, for
purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses of rights to
"intellectual property" as defined under Section 101 of the U.S. Bankruptcy
Code. The Parties agree that the licensee or holder of such rights under this
Agreement shall retain and may fully exercise all of its rights and elections
under the U.S. Bankruptcy Code. The Parties further agree that, in the event of
the commencement of a bankruptcy proceeding by or against one Party under the
U.S. Bankruptcy Code, the other Party shall be entitled to a complete duplicate
of (or complete access to, as appropriate) all embodiments of such intellectual
property, and the same, if not already in its possession, shall be promptly
delivered to the other Party upon such Party's written request, provided that
such intellectual property shall be used by the receiving Party only for the
purposes otherwise contemplated by this Agreement and provided further
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that this sentence shall not apply to any intellectual property of any third
party which is the subject of a sublicense granted hereunder.
14.8. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the United States and the State of California as
applied to agreements entered into and to be performed entirely within
California between California residents.
14.9. Arbitration. Any dispute, controversy or claim arising out of or
relating to this Agreement or the subject matter hereof, or the interpretation,
enforceability, validity, performance, breach or termination hereof or thereof,
including, without limitation, this arbitration clause, shall be solely and
finally settled by arbitration in Los Angeles, California in accordance with the
commercial arbitration rules of the American Arbitration Association (the "AAA
Rules"), as modified by the provisions of this Section 14.9. To the maximum
extent permitted by applicable law, each Party waives any rights to bring any
such dispute, controversy or claim in any other forum or proceeding, including,
without limitation, the International Trade Commission of the United States or
any other administrative or judicial forum. The arbitration shall be conducted
in accordance with the AAA Rules by three arbitrators selected by the Parties.
If the Parties are unable to agree upon the arbitrators within thirty (30) days,
the arbitrators shall be selected in accordance with the AAA Rules, and each of
the arbitrators selected shall have at least five (5) years' experience in the
field that is the principal subject matter of the dispute. After soliciting the
views of the Parties, the arbitrators shall order such discovery as they may
deem reasonable for a full and fair understanding of the facts and issues raised
in the arbitration. The arbitration, including the proceedings, pleadings and
evidence in connection therewith, shall be maintained as confidential. An award
rendered in connection with the arbitration shall be final and binding on the
Parties, and any judgment upon such an award may be entered in any court of
competent jurisdiction. The award shall be in writing and shall provide written
reasons in detail for the award unless the Parties agree otherwise. The award
shall also provide for the fees and expenses of the arbitrators and for the
reasonable attorneys' fees and expenses of the prevailing Party, as determined
by the arbitrators, all to be borne by the non-prevailing Party.
14.10. Severability. If any provision of this Agreement, or portion
thereof, shall be held 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.
14.11. Notices. All notices required or permitted under this Agreement
will be in writing, will reference this Agreement and will be deemed given:
(a) when delivered personally; (b) when sent by confirmed facsimile; (c) ten
(10) days after having been sent by registered or certified air mail, return
receipt requested, postage prepaid; or (d) the third business day after deposit
with a commercial overnight carrier specifying next-day delivery, with written
verification of receipt. All communications will be sent to the address set
forth below (or to such other address as may be designated by a Party by giving
written notice to the other Party pursuant to this Section 14.11):
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Fujitsu:
Fujitsu Limited
1-1 Kamikodanaka 4-chome, ▇▇▇▇▇▇▇▇-▇▇,
▇▇▇▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇-▇▇▇, ▇▇▇-▇▇
▇▇▇▇▇
Facsimile: ▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: General Manager, Processor
Development Division,
Technology Group
▇▇▇▇:
▇▇▇▇ Technology, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇.▇.
Facsimile: ▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: President
14.12. No Waiver. No obligation of a Party hereunder shall be deemed
waived unless the other Party has expressly agreed in writing to a waiver of
such obligation. The failure of a Party to enforce a provision of this Agreement
shall not be deemed a waiver thereof. Waiver by a Party of any provision will
not be deemed a waiver of future enforcement of that or any other provision.
14.13. No Rights in Third Parties. This Agreement is made for the benefit
of Fujitsu and ▇▇▇▇ and not for the benefit of any third parties.
14.14. Counterparts. 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.
14.15. Headings and References. The headings and captions used in this
Agreement are for convenience only and are not to be considered in construing or
interpreting this Agreement.
14.16. Construction. This Agreement has been negotiated by the Parties
and their respective counsel. This Agreement will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either Party.
14.17. Complete Agreement. This Agreement, including all schedules,
attachments and exhibits (each of which is hereby incorporated as though set
forth in full herein), constitutes the entire agreement between the Parties with
respect to the subject matter hereof, and supersedes and replaces all prior or
contemporaneous understandings, agreements, representations or warranties,
written or oral, regarding such subject matter, provided that the Mutual
Non-Disclosure Agreement, dated as of September 9, 1996, among ▇▇▇▇, ▇▇▇ and
Fujitsu (the "NDA") shall remain in effect except in the event of any
inconsistency or conflict with the terms hereof in which case the terms hereof
shall prevail. No amendment to or
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modification of this Agreement will be binding unless in writing and signed by a
duly authorized representative of the Party against which enforcement is sought.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized representatives:
FUJITSU LIMITED ▇▇▇▇ TECHNOLOGY, INC.
By: /s/ Illegible By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
----------------------------- ---------------------------------
Name: Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
Title: Title: President and CEO
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EXHIBIT A
SCHEDULE
**
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇
**
B-1
32
EXHIBIT C
**
33
EXHIBIT D-1
LICENSABLE VIPER DESIGN METHODOLOGY
1. LAYOUT LIBRARIES AND LAYOUT TOOLS
- Cadence layout technology file and environment files
- GDT Led technology file
- Standard Cell library layout (Cadence layout database)
- GDT [-] Cadence layout conversion scripts
- Floorplanning scripts, Cadence Skill generators, and documentation
- Scripts and documentation to setup and run Avanti Place & Route
- Cadence P/N transistor and inv/nand2/nor2 Skill layout generators
- ISS layout parasitic extraction deck and libraries
2. LAYOUT VERIFICATION LIBRARIES AND LAYOUT VERIFICATION TOOLS
- Cadence DRACULA DRC/LVS decks, scripts, and documentation
- ISS DRC/LVS decks, scripts, and documentation
- Cadence Diva DRC/LVS decks
3. FUNCTIONAL VERIFICATION LIBRARIES AND FUNCTIONAL VERIFICATION TOOLS
- Assemblers/disassemblers
- Verilog standard cell gate simulation library
- Cadence Verilog schematic netlister
- Borg Verilog database and simulation manager environment, scripts, and
documentation
- Verilog code, scripts, and documentation for test benches, transaction
generators, and signal monitors
4. TIMING ANALYSIS LIBRARIES
- Pearl timing libraries
- Synopsis synthesis/timing libraries
D-1
34
EXHIBIT D-2
NON-LICENSABLE VIPER DESIGN METHODOLOGY
1. CIRCUIT DESIGN LIBRARIES
- Cadence transistor/gate schematic primitives library and documentation
- Cadence HSPICE netlister and documentation
- HSPICE transistor/resistor simulation and optimization libraries
2. FUNCTIONAL VERIFICATION TOOLS
- "▇▇▇▇▇▇" random test generation programs and documentation
- Directed test generation tools and documentation
D-2
35
EXHIBIT E
EXISTING VIPER TECHNOLOGY
**