DPA 38-095 EXHIBIT 10.6
------------
TECHNOLOGY LICENSE AGREEMENT
BETWEEN
SOLCOM SYSTEMS LIMITED
AND
HEWLETT-PACKARD COMPANY
1.15 Any reference in this Agreement to "dollars" or "S" shall mean United
States Dollars, and any reference to "pounds" or "(pound)" shall mean
British Pounds Sterling.
DEVELOPMENT WORK
2.1 SolCom shall complete the development work ("NPE") in accordance with
Appendix A. Upon completion of each "Deliverable" specified in Appendix
A, SolCom shall deliver to HP up to five Probes (as determined by HP)
and one copy of the associated Firmware for the purpose of consistent
certification of the Deliverable by HP. Any Probes delivered to HP for
the purpose of certification of Deliverables, and not purchased by HP
under the terms of Item 4 of Appendix D, shall be returned to SolCom
within five working days from the end of the "HP Review Period"
specified in Appendix A.
2.2 HP shall pay the NPE of sixty-two thousand nine hundred sixty-eight
dollars in accordance with the "NPE Schedule" in Appendix A
2.3 SolCom shall ensure that any Probes delivered to HP in accordance with
Section 2.1 above and Item 4 in Appendix D are compatible with HP's
software as defined in Appendix F.
2.4 In an effort to keep the Technology current, SolCom shall provide HP
with RMON-11 within six months from Effective Date of this Agreement or
publication date of the Draft Standard, whichever is later. SolCom
shall provide any other developments that result in performance
enhancements or bug fixes when they become available at no additional
increase in the "License Fee" in Appendix D).
2.5 HP shall be entitled to terminate this Agreement and receive a
one-hundred percent refund of all NRE paid to date if SolCom fails to
deliver in accordance with the NRE Schedule detailed in Appendix A.
2.6 HP shall provide all necessary technical information to SolCom for
incorporating the BP Technology into the Probe by SolCom within five
days of receipt of a request.
2.7 SolCom shall deliver the Documentation to HP in accordance with the
schedule in Appendix A.
2
2.8 The deliverables and acceptance process are defined in Appendix A.
3 LICENSE GRANT
3.1 SolCom hereby grants to HP and its subsidiaries a world-wide,
non-exclusive license in the Technology to use, make, have made,
display, disclose, reproduce, create derivative works, sell and
distribute with the right to grant licenses of or within the scope
of this license.
3.2 Except as expressly provided in this Agreement, SolCom retains all
rights to the specific implementation of the Technology.
3.3 HP shall own all right, title and interest in all modifications made
by HP pursuant to Section 3.1 above.
3.4 This Agreement does not preclude HP from independently developing,
acquiring, or manufacturing technology which is similar to or
competitive with the Technology, provided that such development does
not rely on, incorporate or use SolCom's intellectual property.
SolCom acknowledges that HP currently manufactures products based on
technology which is similar to the Technology, and will continue to
do so in the future; HP shall not be liable for any Licensing Fee or
other obligation to SolCom by reason of such products. HP
acknowledges that SolCom develops and plans to manufacture and sell
products based on the Technology, and will continue to do so in the
future; nothing in this Agreement shall prevent SolCom from doing
so.
3.5 Nothing in this Agreement requires HP to market a product using the
licensed Technology. HP shall have the authority to market or not
market the HP Product as it deems appropriate.
4 ENHANCEMENTS AND NEW TECHNOLOGIES
4.1 SolCom grants to HP the right of first refusal on any Enhancement or
New Technology developed by and for SolCom during the term of this
Agreement.
4.2 At least sixty days prior to the first commercial release of any
Enhancement or New Technology, SolCom shall notify and provide HP
with the related specification for HP to test and evaluate. HP shall
evaluate the Enhancement or New Technology and decide if HP wishes
to adopt it within thirty days from notification.
4.3 If HP wishes to adopt any Enhancement or New Technology after the
evaluation, HP shall so notify SolCom. SolCom and HP agree to
negotiate in good faith to define functionality, development costs,
licensing fee, term, and schedule for adding the Enhancement or New
Technology to this Agreement.
3
4.4 Subject to Section 4.3 above, SolCom grants to HP the option to add any
Enhancement or New Technology to this Agreement on an exclusive basis.
4.5 HP may from time to time propose Enhancements. SolCom and HP agree to
negotiate in good faith to define functionality, development costs,
licensing fee, and schedule for adding the Enhancement to this
Agreement.
SUPPORT
5.1 SolCom shall provide HP with as much consulting and training as HP may
require in order to successfully manufacture HP Products, including HP
Products which incorporate Enhancements or New Technology. Up to five
days of consulting and training shall be at no charge to HP, and HP has
the option of paying for additional days at the rate of (pound)500.00
per SolCom person per day. An additional five days will be provided to
HP at no charge for each significant Enhancement or New Technology
adopted by HP pursuant to Section 4 above. HP shall pay reasonable,
actual travel and per diem expenses.
5.2 SolCom shall provide a knowledgeable Account Manager as described in
Article 11.1 below, for coordinating the support described in this
Article 5, as well as the resolution of any other issues that may arise
under this Agreement.
5.3 HP shall be responsible for support of its customers. If HP receives a
problem report from any customer, HP will attempt to reproduce the bug
on Derived Hardware. If HP is able to reproduce the bug then HP will
give notice of the problem to SolCom. SolCom shall take appropriate
action to resolve the problem in accordance with Section 5.8 below.
5.4 HP may duplicate and use, either internally or for HP's customers, all
training classes and training materials developed by SolCom with
respect to the HP Product, in any manner HP reasonably deems
appropriate.
5.5 The obligations of SolCom pursuant to this Article 5 shall continue for
a period of five years after the expiration or termination of this
Agreement.
5.6 For the term of this Agreement, at no additional charge to HP, SolCom
shall provide HP with ongoing technical support for the Technology,
such technical support shall include but not be limited to:
(a) Providing normal evolutionary enhancements to stay in compliance
with the FDDI RMON Standard;
(b) Receiving defect reports and fixing defects or providing
workarounds;
(c) Maintaining a telephone number for HP to call during normal
business hours or an
4
electronic mail address to report problems and receive
assistance;
(d) Providing prompt communication and assistance to HP for the
resolution of problems;
(e) Providing updates from time to time, when appropriate, and
instructions for implementation; and
(f) Providing HP with either a written quarterly report of all known
defects in the Technology or electronic access to SolCom's Defect
Log.
5.7 At HP's option, SolCom will provide ongoing technical support as
described in Sections 5.6 and 5.8, for a period of five years after the
expiration of this Agreement, for an annual fee not to exceed
$5,000.00.
5.8 HP will notify SolCom of any defects or deficiencies in the Technology
and SolCom shall timely and reasonably remedy such defects in
accordance with HP's priority classification as defined in Phase 1 of
Appendix A. SolCom's obligation to rectify reported defects in the
Technology is contingent upon receiving a full description of the
defect and such information as necessary to characterize the defect and
the circumstances under which it is observed. In the event HP notifies
SolCom of a defect, SolCom shall respond in accordance with RP's
priority classification in Phase 1 of Appendix A. SolCom shall remedy
all defects by repairing the revision of the FDDI RMON Technology and
OS Software which HP is then currently distributing, or providing a
workaround that is acceptable to HP.
5.9 SolCom shall provide HP designated support personnel with a technical
training class at HP on the HP Product for up to two days. Such
training class shall provide HP support personnel with sufficient
information to fully support and maintain the HP Product and shall
include disclosure of principles of operation and disclosure of those
tools necessary to support the HP Product as well as any other content
as may be mutually agreed by the SolCom and HP support/Account
Managers. The class shall be taught in a manner to permit the HP
students to train other HP employees ("train-the-trainer method"). Such
training shall be at no charge to HP except for (i) reasonable, actual
travel and per diem charges for SolCom instructors and HP students and
(ii) reasonable costs for video tapes, technical notes or other
material which SolCom supplies to HP. HP shall have the right to copy
any materials provided by SolCom for the purpose of enabling HP to
train other employees on the operation of the HP Product. SolCom may
charge HP, at the rate of (pound)500.00 per SolCom person per day, for
additional HP Product training classes as requested by HP.
5.10 SolCom shall provide an additional technical training session under the
same conditions each time an Enhancement or New Technology is added to
this Agreement; the parties may mutually agree to a less extensive
training session for insubstantial Enhancements or
5
New Technologies.
6 LICENSING FEES
6.1 In consideration for the rights granted to HP by SolCom in this
Agreement, HP shall pay a "License Fee" to SolCom in accordance with
this Article 6 and Appendix D.
6.2 HP shall pay SolCom a License Fee for each HP Product or any product
incorporating the licensed Technology licensed or distributed to
third parties by HP, HP's subsidiaries, or HP's licensee's. No
License Fee shall be due for:
(a) any HP Product or product incorporating the licensed
Technology subsequently returned for a refund or other
adjustment;
(b) any HP Product or product incorporating the licensed
Technology used by or distributed by HP for reasonable
demonstration, training, or support purposes;
(c) any user or technical documentation which may be distributed
in conjunction with the HP Product or product incorporating
the licensed Technology; or
(d) any enhancements, updates or replacement HP Products or
products incorporating the licensed Technology which are
shipped by HP to its resellers or end-users.
6.3 License Fee payments due SolCom may be bundled and remitted at the
end of each HP fiscal quarter, reflecting HP Products and any
product incorporating the licensed Technology shipped during the
previous fiscal quarter, less any recoverable fees already paid by
HP and any credits for returns, refunds to customers, or other
adjustments. HP will make best efforts to remit License Fee payments
to SolCom by the seventh working day after the end of each fiscal
quarter. The amount of these payments and any other information
associated to these payments is confidential information of HP.
6.4 HP shall provide to SolCom a monthly report due fifteen days after
the end of each calendar month of the sales for that month. SolCom
may, at its sole expense and no more frequently than once a year,
engage an independent auditor mutually acceptable to HP for the
purpose of verifying License Fee payments. HP will maintain
appropriate records, including sub-licensee sales, and make such
records reasonably available to the auditor. If such records are
found to be in error by more than five percent, then HP shall pay
the deficient amount and the cost of the audit.
6.5 SolCom shall be solely liable for taxes on all fees paid to SolCom
by HP under this Agreement, including all state withholding and
local use, sales, property (ad valorem), and other taxes but
excluding taxes calculated solely on HP's income.
6.6 All payments to SolCom are to be paid in Pounds Sterling ((pound))
based on the exchange rate of
6
$ 1.575 is equivalent to one Pound Sterling and will be wired to:
The Bank of Scotland
00 Xx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Account #: 00-000-000
Sort Code #: 80-31-20
6.7 In accordance with the tax treaty between the United States and the
United Kingdom which exempts industrial royalties from taxation,
SolCom has completed a Department of the Treasury, Internal Revenue
Service Form 1001 and provided it to HP for inclusion into Appendix
I of this Agreement.
7 CONFIDENTIAL INFORMATION
7.1 During the term of this Agreement, both parties will require access
to information which the other considers confidential (collectively
"Confidential Information"), each party has agreed to disclose and
receive the information in confidence by signing a two-way
Non-Disclosure Agreement (Appendix G). The Confidential Information
shall be labeled confidential and shall only be used by those
employees of the receiving party who have a need to know such
information. Except as provided for in Article 9, on termination of
the Agreement, all Confidential Information (including all copies
made) shall be returned by the recipient to the originator or
destroyed, at the originator's option.
7.2 Confidential Information shall be safeguarded by the receiving party
for five years after receipt against disclosure to third parties by
employing the same degree of care as the receiving party uses for
its own information of a similar nature.
7.3 No obligations of confidentiality shall extend to information which
is:
(a) Publicly available through no fault of the receiving party;
(b) Independently developed by the receiving party;
(c) Already in the receiving party's possession;
(d) Rightfully received from a third party without an obligation
of confidentiality;
(e) Disclosed to a third party without a duty of confidentiality;
or
(f) Disclosed under operation of law.
7
8 WARRANTIES
8.1 SolCom warrants that (excluding any claims arising by Willemijn
Houdstermaatschappij BV (a.k.a. Soderblom) toward the Technology,
which HP waives indemnification):
(a) It has full power and authority to grant HP the rights granted
herein; and
(b) The Technology does not infringe or otherwise violate any
patent, copyright, trade secret or other proprietary right of
any third party; and
(c) SolCom is not aware of any facts upon which such a claim for
violation or infringement could be based.
8.2 SolCom will indemnify and defend HP from any costs, claims, suit, or
proceeding brought against HP or its customers insofar as it is
based on a claim that any program, documentation, hardware,
technology, copyright, or trade name or any part thereof, furnished
by SolCom under this Agreement constitutes an infringement of any
patent copyright, trademark, trade name, or unauthorized trade
secret use, if notified promptly in writing of such claim, and given
authority, information and assistance (at SolCom's expense) to
handle the claim and the defense of any suit or proceeding. SolCom
agrees to pay all damages and costs awarded therein against HP and
its customers. In case any Program or documentation or any part
thereof is in such suit held to constitute an infringement and its
use is enjoined, SolCom shall, at its own expense and at its option,
either procure for HP and its customers the right to continue use
or, if applicable, replace the same with a noninfringing Program and
documentation of equivalent function and performance, or modify them
so they become noninfringing without detracting from function or
performance. SolCom warrants that all hardware, firmware, and
software provided within the scope of the Agreement shall conform
and perform in accordance with all specifications and documentation
provided by SolCom as part of this Agreement.
8.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SOLCOM MAKES NO
OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE
TECHNOLOGY, ITS MERCHANTABILITY, OR ITS FITNESS FOR ANY PARTICULAR
PURPOSE.
8.4 EXCEPT AS PROVIDED IN SECTION 8.2 ABOVE, IN NO EVENT SHALL HP OR
SOLCOM BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS)
ARISING OUT OF ANY PERFORMANCE UNDER THIS AGREEMENT, WHETHER SUCH
DAMAGES ARE BASED ON TORT, CONTRACT, OR ANY OTHER LEGAL THEORY AND
WHETHER ADVISED OF POSSIBILITY OF SUCH DAMAGES
ACCESS TO SOURCE CODE
8
9.1 SolCom agrees to escrow the source code to all OS Software at HP
Corporate Headquarters. The terms of such escrow are set forth in
Appendix J.
9.2 SolCom agrees to make the initial deposit of Source Code within
forty-five days of the Effective Date. All revisions and updates shall
be deposited into escrow within forty-five days of release.
9.3 SolCom agrees to maintain the source code in escrow for five years
after the expiration of this Agreement.
9.4 The Source Code Deposit Agreement (Appendix J) shall allow access to
the source code under the following conditions, providing HP gives
SolCom ten days notice of intent to access:
(a) If SolCom is in breach of this Agreement and the breach is
remediable and SolCom doe not remedy such breach within thirty
days of notice from HP, then HP shall be entitled access to
the source code and Documentation for the purpose of curing
the breach. License Fees will accrue, but no License Fees
shall be payable by HP until SolCom or its successor performs.
or,
(b) Failure of SolCom within thirty days of HP's giving notice to
SolCom, to fulfill its support obligations as required in this
Agreement.
9.5 Nothing in this Article 9 shall remove HP's obligation to pay License
Fees in the event of the contingencies in paragraph 9.4 (a) or (b).
9.6 Failure of SolCom to comply with this Article 9 shall constitute a
material breach of this Agreement.
TERMINATION
10.1 This Agreement shall expire three years from the first production
shipment of the HP Product. In the case of any Enhancement or New
Technology added to this Agreement in accordance with Article 4 above,
the term for the Enhancement or New Technology shall be mutually agreed
to by both parties.
10.2 In the event of a breach of this Agreement by a party hereto, the
non-breaching party shall give notice of such default to the other
party and, if the breach is not cured within sixty calendar days of
such notice, shall be entitled to terminate the Agreement.
10.3 The obligations and rights in Articles 5, 6, 7, 8, and 9 as well as
HP's rights in Section 3.1 shall survive the expiration or earlier
termination of this Agreement, except that the obligations regarding
confidentiality and support shall survive only through the end of the
9
periods sat forth in the applicable provisions of this Agreement.
MISCELLANEOUS PROVISIONS
11.1 The parties shall each designate an Account Manager who shall act as an
overall coordinator for activities performed under this Agreement. The
parties' initial Account Managers are identified in Section 1 1.2
below. Either party may change its Account Manager by providing notice
to the other party.
11.2 All notices given pursuant to this Agreement shall be in writing, and
shall be considered given upon personal delivery, upon forty-eight
hours after sending by fax or air express, or upon ten days after
deposit in the United States Mail, certified mail return receipt
requested. All notices shall be addressed to the appropriate Account
Manager as specified below:
Solcom: HP:
SolCom Systems Limited Hewlett-Packard Company
0 Xxxx Xxxxxx X.X. Xxx 0000
Xxxxxxxxxx Xxxxxxxxxx Xxxx Colorado Springs, Colorado 80933
Livingston, United Kingdom EH4 9 DE USA
Account Manager: Xxxx Xxxxx Account Manager: Xxx Xxxxxx
11.3 Neither party shall publicize or otherwise disclose to any third party
the terms or content of this Agreement, except as required by law. In
particular, no press releases shall be made by either party without the
mutual consent of the other party.
11.4 This Agreement shall be governed by and construed under the laws of
England.
11.5 The captions of Articles of this Agreement are for reference only, and
shall not be construed as a part of this Agreement.
11.6 Neither party's failure to exercise any right under this Agreement
shall constitute a waiver or forfeiture of such right nor of any other
right. The remedies specified in this Agreement are in addition to any
other remedies available at law or in equity.
11.7 Each Appendix referred to in this Agreement is incorporated in fall in
this Agreement wherever reference to it is made.
11.8 Neither party shall be liable to the other under this Agreement for any
default or breach due to or caused by any fire, civil unrest, act of
God or other event beyond that party's control.
11.9 This Agreement constitutes the entire agreement between the parties as
to the matters set forth and integrates all prior discussions and
understandings between them.
10
11.10 This Agreement may only be modified by a written instrument signed by
an authorized representative of both SolCom and HP.
11.11 This Agreement may be executed in counterparts, each of which shall be
deemed an original.
SOLCOM SYSTEMS LIMITED HEWLETT-PACKARD COMPANY
By: /s/ X.X. XxxXxxxx By: /s/ Xxxxxxx X. Xxxxx
Type Name: X.X. XxxXxxxx Type Name: Xxxxxxx X. Xxxxx
Title: Financial Director Title: General Manager
Date: 20 October 1995 Date: 26 October 1995
11
Amendment to
XXX 00-000
xxx XXX 0000-00000-0
AMENDMENT 1 TO AGREEMENT
NMO XXX 00-000
xxx XXX 0000-00000-0
Between SolCom and HP
DATED October 26, 1995
Please amend the opening paragraph to include the following:
This Amendment ("Amendment) is entered into by SolCom Systems Limited,
a company registered in Scotland ("SolCom") the Hewlett-Packard Company, a
California corporation (HP). This Amendment is effective upon the date of the
last signature ("Amendment Effective Date") and shall remain in effect for three
years.
All Articles, Sections and Appendices of the original Agreement shall be binding
on this Amendment unless noted below.
Amend entire Agreement by inserting ",Token Ring and Ethernet" immediately after
FDDI wherever FDDI is referenced except for:
o section 1.4 insert "Token Ring or Ethernet"
o section 1.6 do not insert anything after FDDI
o section 1.8 do not insert anything after FDDI
o section 1. 10 insert ",Token Ring or Ethernet"
o Appendix B do not insert anything after any of the FDDI'S, this is a
FDDI specific Appendix
o Appendix D do not insert anything after FDDI
Amend section 1.1 by replacing "Probe " with "Probe(s)"
Amend section 2.2 by adding the following sentence:
"And, HP shall pay the NRE of thirty thousand dollars in accordance with the
"NRE Schedule" in Appendix A- 1."
Amend section 5.7 as follows.
At HP's option, SolCom will provide ongoing technical support as described in
Sections 5.6 and 5.8, for a period of five years after the expiration of this
Agreement, for an annual fee not to exceed $7,500.00.
1
Amend section 6.6 as follows:
All payments to SolCom are to be paid in U.S. Dollars ($) and wired to:
The Bank of Scotland
000 Xx Xxxxxxx Xx
Xxxxxxx, Xxxxxxxx
Account # 86064USDO1
Sort Code #80 20 13
Amend Appendix A to include Appendix A-1 (see Appendix A-1):
Amend Agreement by inserting "and A-1" after each reference to Appendix A
Amend Appendix B to include Appendix B-1 (see Appendix B-1):
Amend Agreement by inserting "and B-1" after each reference to Appendix B
2
Amendment to
XXX 00-000
xxx XXX 0000-00000-0
Amend Appendix D to include Appendix D- 1 (see Appendix D- 1):
Amend Agreement by inserting "and D- 1 " after each reference to Appendix D
APPROVED AND AGREED TO:
SOLCOM SYSTEMS LIMITED HEWLETT-PACKARD COMPANY
By: /s/ Xxxxx X. XxxXxxxx By: /s/ Xxxx Xxxxx
Type Name: Xxxxx X. XxxXxxxx Type Name: Xxxx Xxxxx
Title: Financial Director Title: General Manager
Date: 26 February 1996 Date: March 4, 1996
3
Amendment 2
DPA 0000-00000-0
AMENDMENT 2 TO AGREEMENT
NMO XXX 00-000
XXX XXX 0000-00000-0
Between SolCom and HP
DATED October 26, 1995
This Amendment ("Amendment") is entered into by SolCom Systems Limited, a
company registered in Scotland ("SolCom") the Hewlett-Packard Company, a
California corporation ("HP"). This Amendment is effective upon the date of the
last signature ("Amendment Effective Date") and shall remain in effect for three
years.
All Articles, Sections and Appendices of the original Agreement shall be binding
on this Amendment unless noted below:
Amend Section 1 to include the following definition:
1.16 "Fast-Ethernet" shall mean 100MB/second Ethernet Technology.
1.17 "Probe architecture" shall be a SolCom hardware and software design
combination which results in a new HP probe.
All Articles, Sections and Appendices of the original Agreement and any
Amendments shall be binding on this Amendment unless noted below:
Amend entire Agreement and any Amendments by inserting " and Fast-Ethernet "
immediately after Ethernet wherever Ethernet is referenced.
Amend section 5.7 as follows:
At HP's option, SolCom will provide ongoing technical support as described in
Sections 5.6 and 5.8 for a period of five years after the expiration of this
agreement, for an annual fee of $2000.00 per probe architecture. If HP elects
ongoing support, it must be purchased for all probe architectures covered by
this contract
Amend Appendix B to include Appendix B-2 (see Appendix B-2):
Amend Agreement by inserting "and B-2" after each reference to Appendix B
Amend Appendix D to include Xxxxxxxx X-0 (see Appendix D-2):
Amend Agreement by inserting "and D-2 " after each reference to Appendix D
1
Amend Agreement by adding Appendix K
APPROVED AND AGREED TO:
SOLCOM SYSTEMS LIMITED HEWLETT-PACKARD COMPANY
By: /s/ X.X. XxxXxxxx By: /s/ Xxxx Xxxxxxx
Type Name: X.X. XxxXxxxx Type Name: Xxxx Xxxxxxx
Title: Financial Director Title: NMO Business Manager
Date: 5 July 1996 Date: 7/17/96
2
Amendment to
DPA 38-097
AMENDMENT 3 TO AGREEMENT
NMO DPA 38-097 (aka DPA 0804-95097-1)
Between SolCom and HP
Please amend the opening paragraph to include the following:
This Amendment ("Amendment") is entered into by SolCom Systems Limited,
a company registered in Scotland ("SolCom") the Hewlett-Packard
Company, a California corporation ("HP"). This Amendment is effective
upon the date of the last signature ("Amendment Effective Date") and
shall remain in effect for three years.
All Articles, Sections and Appendices of the original Agreement shall be binding
on this Amendment unless noted below:
Amend Section 2.2 by adding the following sentence:
"And, HP shall pay the NRE of Thirty nine thousand five hundred dollars
($39,500) in accordance with the "NRE Schedule" in Appendix A-2"
Add Section 2.9 as follows.
Bonus Clause
o For the FDDI LanProbe modifications which include the addition of an
ethernet port with DB-15 and RJ-45 connectors, there shall be a bonus
of $500.00 per day paid to Solcom for each day that the Deliverables in
Phase 6 are completed prior to the deadline (for example: completion 5
days early 5 x $500.00 = $2,500.00 bonus), with a maximum total bonus
of $5,000.00 available to Solcom. The money will be awarded for
completing Phase 6 of the NRE schedule in Appendix A-2 in accordance
with the established hardware and software quality requirements. Delays
in the completion of Phase 6 due to BP's actions shall not affect
Solcom's eligibility for the bonus.
o Any delays past the published completion date for phase 6, listed in
Appendix A-2 for each deliverable will result in damages to HP.
Liquidated Damages in the amount of $500.00 per day for each day late
shall be deducted from the NRE payment to Solcom in accordance with the
NRE schedule in Appendix A-2. Liquidated Damages will be limited to a
total of $5000.00. SolCom's liability for liquidated damages shall be
reduced by the extent to which delays in the completion of phase 6 are
due to HP's actions.
Amend Appendix A to include Appendix A-2 (See Appendix A-2):
Amend Agreement by inserting "and A-2" after each reference to Appendix A
Amend Appendix B to include Appendix B-3 (see Appendix B-3):
1
Amend Agreement by inserting "and B-3 " after each reference to Appendix B
Amend Appendix D to include Xxxxxxxx X-0 (see Appendix D-1):
Amend Agreement by inserting "and D-3" after each reference to Appendix D
APPROVED AND AGREED TO:
SOLCOM SYSTEMS LIMITED HEWLETT-PACKARD COMPANY
By: /s/ Xxxxx Xxxxx XxxXxxxx By: /s/Xxxx Xxxxxxxxx
Type Name: Xxxxx Xxxxx XxxXxxxx Type Name: Xxxx Xxxxxxxxx
Title: Financial Director Title: Controller
Date: 11 March 1997 Date: 2-23-97
Materials Manager /s/ Xxxxxx Peru
2
Amendment to
DPA 38-097
AMENDMENT 4 TO AGREEMENT
NMO DPA 38-097 (aka DPA 0804-95097-1)
Between SolCom and HP
Please amend the opening paragraph to include the following:
This Amendment ("Amendment") is entered into by SolCom Systems Limited,
a company registered in Scotland ("SolCom") the Hewlett-Packard
Company, a California corporation ("HP"). This Amendment is effective
upon the date of the last signature ("Amendment Effective Date") and
shall remain in effect for three years.
All Articles, Sections and appendices of the original agreement shall be binding
on this amendment unless noted below:
Amend section 1.10 by inserting the following after the phrase "'FDDI RMON
Probe":
Multiport Ethernet daughter card or Multiport Token-Ring
daughter Card,"
Add sections 1.18, and 1.19:
1.18 Multiport Ethernet daughter card ('Multiport Ethernet daughter
card") shall mean the SolCom technology consisting of
schematics, parts list PAL equations and ROMable code to
implement a PCI bus card with the ability to simultaneously
monitor four interfaces on a switched 10MB/sec Ethernet switch
without the use an external hub.
1.19 Multiport Token-Ring daughter card ("Multiport Token-Ring
daughter card') shall mean the SolCom technology consisting of
schematics, parts list, PAL equations and ROMable code to
implement a PCI bus card with the ability to simultaneously
monitor two 4MB/sec or 16MB/sec Token Rings.
Amend section 2.2 by adding the following sentence:
"And, HP shall pay the NRE of seventy eight thousand four hundred
dollars ($78,400) in accordance with the "NRE Schedule" in Appendix A-3
for the development of a Multiport Ethernet PCI Bus daughter card
("Multiport Ethernet daughter card") and a Multiport Token-Ring PCI Bus
daughter card "Multiport Token-Ring daughter card").
Add section 2.10 as follows:
Bonus Clause
o For the Multiport Ethernet daughter card and Multiport
Token-Ring daughter card, there shall be a bonus of $400.00
per day paid to SolCom for each day that the Deliverables in
Phase 8 are completed prior to the deadline. For example:
completion 5 days early = 5 x $400.00 = $2,000.00 bonus, with
a maximum total bonus of $5000.00 available to SolCom. The
money will be awarded for completing Phase 8 of the NRE
schedule in Appendix A-3 in accordance with the Acceptance
Criteria and Test Plan included in Appendix B-5 (See
1
Amendment 6). Delays in the completion of Phase 8 due to HP's
actions shall not affect SolCom's eligibility for the bonus.
o Any delays past the published completion date for phase 8,
listed in Appendix A-3 for each deliverable will result in
damages to HP. Liquidated Damages in the amount of $400.00 per
day for each day late shall be deducted from the final NRE
payment to SolCom in accordance with the NRE schedule in
Appendix A-3. Liquidated Damages will be limited to a total of
$5000.00. SolCom's liability for liquidated damages shall be
reduced by the extent to which delays in the completion of
Phase 8 are due to HP's actions.
Add section 3.6 as follows
"3.6 HP hereby grants to SolCom a world-wide, non-exclusive license to
use the system processor board layout of HP's Fast Ethernet Probe (HP
PIN J3458A) for the manufacture and distribution of SolCom Products. HP
does not grant SolCom the right to transfer this license or HP
Product/HP Technology, to any third party without the prior written
consent of HP."
Add section 3.7 as follows
"3.7 HP hereby grants to SolCom a world-wide, non-exclusive license to
use the design and layout of BP's Half and Full Duplex Fast Ethernet
daughter cards (HP P/N J3458A, Option 200 and Option 201, respectively)
for the manufacture and distribution of SolCom Products incorporating
similar Half and Full Duplex Fast Ethernet daughter cards. HP does not
grant SolCom the right to distribute individual Full Duplex daughter
cards for resale without their incorporation into a SolCom Fast
Ethernet Probe Product. HP does not grant SolCom the right to transfer
this license or HP Product Technology in respect of Full Duplex
daughter cards to any third party without the prior written consent of
HP."
Add section 6.8 as follows:
"6.8 SolCom shall pay an "NRE Refund" to HP in accordance with this
section 6.8 and Xxxxxxxx X-0 for each SolCom Product sold incorporating
a Multiport Token-Ring daughter card.
6.8.1 SolCom shall pay HP an NRE Refund for each SolCom Product
incorporating a Multiport Token-Ring OR Full Duplex Fast
Ethernet daughter card per Appendix B- 4. No NRE Refund shall
be due for:
6.8.1.1 any SolCom Product or product incorporating
a Multiport Token-Ring daughter card
subsequently returned for a refund or other
adjustment;
6.8.1.2 any SolCom Product or product incorporating
a Multiport Token- Ring daughter card used
by or distributed by SolCom for reasonable
demonstration, training, or support
purposes;
2
6.8.1.3 any enhancements, updates or replacement
SolCom Products or products incorporating a
Multiport Token-Ring daughter card which are
shipped by SolCom to its resellers or
end-users.
6.8.2 NRE refunds due HP may be bundled and reported at the end of
each HP fiscal quarter, reflecting SolCom Products and any
product incorporating a Multiport Token-Ring daughter card
shipped during the previous fiscal quarter, less any
recoverable fees already paid by SolCom and any credits for
returns, refunds to customers, or other adjustments. SolCom
will make best efforts to remit NRE Refund reports to HP by
the third working day after the end of each fiscal quarter.
The amount of these payments and any other information
associated to these payments is confidential information of
SolCorn. NRE Refunds due HP by SolCom shall be deducted from
License Fees due SolCom as specified in this article 6.
6.8.3 SolCom shall provide to HP a monthly report due fifteen days
after the end of each calendar month of the sales for that
month. BP may, at its sole expense and no more frequently than
once a year, engage an independent auditor mutually acceptable
to SolCom for the purpose of verifying NRE Refund reports.
SolCom will maintain appropriate records, including
sub-licensee sales, and make such records reasonably available
to the auditor. If such records are found to be in error by
more than five percent then SolCom shall pay the deficient
amount and the cost of the audit.
6.8.4 HP shall be solely liable for taxes on all fees paid to HP by
SolCom under this Agreement, including all state withholding
and local use, sales, property (ad valorem), and other taxes
but excluding taxes calculated solely on SolCom's income."
Add section 6.9 as follows:
6.9 SolCom shall pay a License Fee to HP in accordance with this section 6.9 and
Xxxxxxxx X-0 for each SolCom Product sold incorporating a Full Duplex Fast
Ethernet daughter card.
6.9.1 SolCom shall pay HP a License Fee for each SolCom Product
incorporating Full Duplex Fast Ethernet daughter card, HP P/N J3458A,
Option 201. No NRE Refund shall be due for:
6.9.1.1 any SolCom Product or product incorporating a Full
Duplex Fast Ethernet daughter card subsequently returned for a
refund or other adjustment:
6.9.1.2 any SolCom Product or product incorporating Full
Duplex Fast Ethernet daughter card used by or distributed by
SolCom for reasonable demonstration training, or support
purposes:
3
6.9.1.3 any enhancements, updates or replacement SolCom
Products or products incorporating a Full Duplex Fast Ethernet
daughter card which are shipped by SolCom to its rescilers or
end-users.
6.9.2 License Fees due BP may be bundled and reported at the end of
each HP fiscal quarter, reflecting SolCom Products and any product
incorporating a Full Duplex Fast Ethernet daughter card shipped during
the previous fiscal quarter, less any recoverable fees already paid by
SolCom and any credits for returns, refunds to customers, or other
adjustments. SolCom will make best efforts to remit License Fee reports
to HP by the third working day after the end of each fiscal quarter.
The amount of these payments and any other information associated to
these payments is confidential information of SolCom. License Fees due
HP by SolCom shall be deducted from Licensee Fees due SolCom as
specified in this article 6.
6.9.3 SolCom shall provide to HP a monthly report due fifteen days
after the end of each calendar month of the sales for that month. HP
may, at its sole expense and no more frequently than once a year,
engage an independent auditor mutually acceptable to SolCom for the
purpose of verifying NRE Refund reports. SolCom will maintain
appropriate records, including sub-licensee sales, and make such
records reasonably available to the auditor. If such records are found
to be in error by more than five percent, then SolCom shall pay the
deficient amount and the cost of the audit.
6.9.4 HP shall be solely liable for taxes on all fees paid to UP by
SolCom under this Agreement, including a state withholding and local
use, sales, property (ad valorem), and other taxes but excluding taxes
calculated solely on SolCom's income."
Add the following phrase to the beginning of section 8.2:
"Except to the extent of the indemnity set forth below"
Add the following phrase to the end of section 8.2:
"SolCom agrees to defend, indemnify and hold HP harmless from any
claims, suits, proceedings, costs and expenses brought against or
incurred by BP as a result of SolCom's use of the design and/or layout
of EP's Multiport Token-Ring daughter cards, Half and Full Duplex Fast
Ethernet daughter cards or Fast Ethernet Probe system processor boards"
Add section 8.5 as follows:
"8.5 HP MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
REGARDING THE TECHNOLOGY, ITS MERCHANTABILITY, OR ITS FITNESS
FOR ANY PARTICULAR PURPOSE."
Amend Appendix A to include Appendix A-3 (see Appendix A -3):
Amend Agreement by inserting "and A-3 " after each reference to Appendix A
Amend Appendix B to include Appendix B-4 (see Appendix B-4):
4
Amend Agreement by inserting "and B-4" after each reference to Appendix B
Amend Appendix D to include Xxxxxxxx X-0 (see Appendix D-4):
Amend Agreement by inserting "and D-4" after each reference to Appendix D
APPROVED AND AGREED TO:
SOLCOM SYSTEMS LIMITED HEWLETT-PACKARD COMPANY
By: /s / X.X. XxxXxxxx By: /s/ Xxxx Xxxxxxxxx
Type Name: X.X. XxxXxxxx Type Name: Xxxx Xxxxxxxxx
Title: Financial Director Title:
Date: 24 November 1997 Date:
Materials Manager
5
Amendment to
DPA 38-097
AMENDMENT 5 TO AGREEMENT
NMO DPA 38-097 (aka DPA 0804-95097-1)
Between SolCom and HP
Please amend the opening paragraph to include the following:
This Amendment ("Amendment") is entered into by SolCom Systems Limited,
a company registered in Scotland ("SolCom") the Hewlett-Packard
Company, a California corporation ("HP"). This Amendment is effective
upon the date of the last signature ("Amendment Effective Date") and
shall remain in effect for three years.
All Articles, Sections and Appendices of the original Agreement shall be binding
on this Amendment unless noted below:
Add section 6.9 as follows:
6.9 Upon execution of this Amendment, HP agrees to make an additional
prepayment in the amount $153,000.00, for License Fees due SolCom in
accordance with the provisions of this Article 6 and Xxxxxxxxxx X, X-0,
X-0, X-0 and D-4. This prepayment raises the outstanding balance of
prepayments issued by HP to SolCom to $350,000.00. Prepayment
("Prepayment") shall mean the outstanding balance of all prepayments at
the time of execution of this Amendment, including the $153,000
prepayment referenced above, which equals $350,000.00.
This Pre-payment of License Fees shall be subject to the following
conditions:
6.9.1 The Prepayment shall not affect the current monthly License
Fees due SolCom for a period of six (6) months from the
issuance of such Prepayment.
6.9.2 Should License Fees due SolCom exceed $100,000.00 in any one
month during the six (6)month period following the issuance of
the prepayment, HP reserves the right to reduce the amount of
such License Fee payment to $100,000.00 by deducting the amount
of the License Fees due in excess of $100,000.00 from the
outstanding Prepayment balance.
6.9.3 Six (6) months from the date of issuance of the Prepayment, HP
shall amortize the remaining balance of the Prepayment over the
succeeding six (6) month period and deduct that amount from the
monthly License Fee payment due SolCom.
6.9.4 SolCom agrees to provide HP with quarterly Financial Forecasts
until such time that HP recovers the Prepayment. The Financial
Forecasts shall include profit and loss statements, balance
sheets and cash flow projections. The Financial Forecasts shall
be subject to the confidentiality term in article 7.
6.9.5 HP reserves the right to extend the period before which the
amortization and recovery of the Prepayment begins based on
BP's assessment of SolCom's current business conditions.
1
APPROVED AND AGREED TO:
SOLCOM SYSTEMS LIMITED HEWLETT-PACKARD COMPANY
By: /s /X.X. XxxXxxxx By: /s/ Xxxx Xxxxxxxxx
Type Name: Xxxxx X. XxxXxxxx Type Name: Xxxx Xxxxxxxxx
Title: Financial Director Title: Controller
Date: 21 July 1997 Date: August 14, 1997
Materials Manager
2
Amendment to
DPA 38-097
AMENDMENT 6 TO AGREEMENT
NMO DPA 38-097 (aka DPA 0804-95097-1)
Between SolCom and HP
Please amend the opening paragraph to include the following:
This Amendment ("Amendment") is entered into by SolCom Systems Limited,
a company registered in Scotland ("SolCom") and the Hewlett-Packard
Company, a California corporation ("HP"). This Amendment is effective
upon the date of the last signature ("Amendment Effective Date") and
shall remain in effect for three years.
All Articles, Sections and Appendices of the original Agreement shall be binding
on this Amendment unless noted below:
Amend entire agreement and any Amendments by inserting "and T1, E1, V-Series,
T3, HSSI, ATM-OC3, ATM-UTP, ATM-DS3, ATM-E3 "immediately after Fast Ethernet,
wherever Fast Ethernet is referenced, with the following exceptions:
Section 1.4 insert - "or T1, E1, V-Series, T3, HSSI, ATM-OC3, ATM-UTP,
ATM-DS3, ATM-E3" after Fast Ethernet
Section 2.9: Do not make any insertions
Section 2.10: Do not make any insertions
Appendix A-2 and A-3: Do not make any insertions
Appendix X-0, X-0, X-0: Do not make any insertions
Xxxxxxxx X-0, X-0 and D4: Do not make any insertions
Appendix K: Do not make any insertions
Amend section 1.10 by inserting the following after "Quad Ethernet daughter card
or Dual Token-Ring daughter card"
"T1, E1 or V-Series, T3, HSSI, ATM-OC3, ATM-UTP, ATM-DS3, ATM-E3
daughter card"
Add sections 1.20, 1.21, 1.22, 1.23, 1.24, 1.25, 1.26 and 1.27 as follows:
1.20 T1 daughter card ("TI daughter card") shall mean a PCI bus
card for the J3458A chassis which connects to a Xx XXX
connection (per ANSI Tl.403) via an RJ-48C and mini-bantam
style connector to access full span (T1 1544 kbps access
channels) and fractional T1 (FTI) channels comprising an
arbitrary configuration and number of time slots up to the
maximum possible. Time slots may be 56kbps or 64 kbps.
1.21 El daughter card ("El daughter card") shall mean a PCI bus
card for the J3458A chassis which connects to a CEPIT El WAN
connection (per G.703 and G.704) 75- ohm and 120-ohm
interfaces via BNC and dual conductor (BR2) BNC to access full
1
span (E I 1984 kbps access channels) and fractional El
channels comprising an arbitrary configuration and number of
time slots up the maximum possible.
1.22 V-Series daughter card ("V-Series daughter card") shall mean a
PCI bus card for the J3458A chassis which connects to V.24
(RS-232), V.35, V.36 (RS-449). ANSI/EIA/TIA-530 (25-pin
interface) and X.21 (V.11) supporting as appropriate line
rates up to 2048 kbps.
1.23 HSSI daughter card ("HSSI daughter card") shall mean a PCI bus
daughter card that is compatible with the HP J3458A Fast
Ethernet LANProbe motherboard. This daughter card shall
connect per ANSI/EIA/TIA-612 and ANSI/EIA/TIA-613 via a 50-pin
connector. It shall be capable of monitoring at speeds up to
52 Mbps.
1.24 T3 daughter card ("73 daughter card") shall mean a PCI bus
daughter card that is compatible with the HP J3458A Fast
Ethernet LANProbe motherboard. The daughter card shall connect
per T1.107a-1990. It shall be capable of monitoring full span
or fractional framed services up to 44.736 N4bps.
1.25 ATM-UTP daughter card ("ATM-UTP daughter card") shall mean a
PCI bus daughter card that is compatible with the HP J3458A
Fast Ethernet LANProbe motherboard. The daughter card shall
connect via RJ-45 connectors with Sonet and SDH framing. It
shall be capable of monitoring a 155 Mbps connection.
1.26 ATM-OC3 daughter card ("ATM-OC3 daughter card") shall mean a
PCI bus daughter card that is compatible with the HP J3458A
Fast Ethernet LANProbe motherboard. The daughter card shall
connect to OC-3c/STM-1 via fiber SC connectors with Sonet and
SDH framing.
1.27 ATM-DS3 daughter card ("ATM-DS3 daughter card"') shall mean a
PCI bus daughter card that is compatible with the HP J3458A
Fast Ethernet LANProbe motherboard. The daughter card shall
connect per T1.107a-1990. It shall be capable of monitoring
full span or fractional framed services up to 44.736 Mbps.
1.28 X0 ("X0 daughter card") ATMProbe daughter card shall mean a
PCI bus daughter card that is compatible with the HP J3458A
Fast Ethernet LANProbe motherboard. The daughter card shall
connect via 75-ohm unbalanced BNC connectors and support PLCP
and direct cell mapping, X-xxx, X00, and G.804/G.832.G.751
framing and B3ZS and HDB3 line codes.
Amend section 2.2 by adding the following sentence:
"And, HP shall pay an NRE of one hundred twenty thousand two hundred
dollars ($120,200) in accordance with the "NRE Schedule" in Appendix
A-4 for the development of TI, El or V-Series, T3, HSSI ATM-OC3,
ATM-UTP, ATM-DS3, ATM-E3 daughter cards.
2
Add section 8.6 as follows:
"Notwithstanding anything to the contrary in Article 8 of the
Agreement, SolCom's liability to HP for costs associated with design
defects in the T1, El, V-Series, T3, HSSI, ATM-OC3, ATM-UTP, ATM-DS3,
ATM-E3 daughter cards shall not exceed the greater of forty two
thousand dollars ($42,000) or twelve and a half percent (12.5%) of the
total license fees paid to date for each individual daughter card."
Amend Appendix A to include Appendix A-4 (see Appendix A-4):
Amend Agreement by inserting "and A-4" after each reference to Appendix A
Amend Appendix B to include Appendix B-5 (see Appendix B-5):
Amend Agreement by inserting "and B-5" after each reference to Appendix B
Amend Appendix D to include Xxxxxxxx X-0 (see Appendix D-5):
Amend Agreement by inserting "and D-5" after each reference to Appendix D
Amend Agreement by adding Appendix L, Additional Firmware Requirements
Amend Agreement by adding Appendix M, Vesuvius High Level Architecture
APPROVED AND AGREED TO:
SOLCOM SYSTEMS LIMITED HEWLETT-PACKARD COMPANY
By: By:
Type Name: Type Name:
Title: Title:
Date: Date:
Materials Manager
(Rest of page intentionally left blank)
3
