SOFTWARE AGREEMENT
THIS AGREEMENT is made between AT&T CORP., a New York corporation, acting
through its AT&T Microelectronics business unit, having an office at Two Oak
Way, Berkeley Heights. New Jersey 07922 ("AT&T") and ARIEL CORPORATION, a
Delaware corporation, having an office at 000 Xxxxx Xxxx, Xxxxxxxx Xxxx, Xxx
Xxxxxx 00000 ("LICENSEE"). The effective date of this Agreement is the later
of the dates of execution by the respective parties.
WHEREAS, AT&T has developed and owns LICENSED SOFTWARE; and
WHEREAS, LICENSEE desires to port LICENSED SOFTWARE from a Windows environment
to other operating system environments; and
WHEREAS, LICENSEE represents that it has in place facilities and an
organization to port, promote, market, distribute and support LICENSED
SOFTWARE, and wishes to distribute various ported versions of LICENSED
SOFTWARE to its customers; and
WHEREAS, AT&T is willing to grant access by LICENSEE to LICENSED SOFTWARE;
NOW, THEREFORE, in consideration of the mutual covenants set forth below, the
parties agree to the following terms and conditions:
1.0 DEFINITIONS
1.1 "LICENSED SOFTWARE" means AT&T's proprietary VCOS software package in
source code form, as specified in Exhibit A, and any object code versions
thereof, as also specified in Exhibit A.
1.2 "PRE-LOADING" means an AT&T approved process whereby applicable
object code versions of LICENSED SOFTWARE, without substantive modification,
are loaded into memory in LICENSEE PRODUCT, or copied into other storage media
prior to delivery by LICENSEE to any End-User or other third party. UPDATES to
LICENSED SOFTWARE may also be included.
1.3 "UPDATE" means a new release or edition of the current version of
LICENSED SOFTWARE that includes corrective actions, bug-fixes, or other
necessary modifications. Such term does not mean any new or later version of
LICENSED SOFTWARE that includes additional or enhanced functionality.
1.4 "LICENSEE PRODUCT" is defined in Exhibit B.
AT&T / ARIEL Proprietary
1.5 "SUBSIDIARY" of a company means a corporation or other legal entity
(i) the majority of whose shares or other securities entitled to vote for
election of directors (or other managing authority) is now or hereafter
controlled by such company either directly or indirectly; or (ii) which does
not have outstanding shares or securities but the majority of whose ownership
interest representing the right to manage such corporation or other legal
entity is now or hereafter owned and controlled by such company either
directly or indirectly; but any such corporation or other legal entity shall
be deemed to be a SUBSIDIARY of such company only as long as such control or
ownership and control exists.
2.0 EXHIBITS
The following exhibits are attached hereto and made a part thereof:
Exhibit A: Summary of AT&T Licensed Software
Exhibit B: Software Distribution Rights
Exhibit C: Approved Operating Systems
Exhibit D: Minimum Requirements for End-user Software License
Agreement
3.0 TERM
This Agreement shall continue for a term of twenty-four (24) months,
unless earlier terminated in accordance with Section 17. LICENSEE's
obligations under Sections 9, 10, 14, 16 and 18 shall survive any termination
of this Agreement, including its expiration.
4.0 LICENSE GRANT
4.1 AT&T hereby grants to LICENSEE a personal, nontransferable, and
non-exclusive right to use and port, at LICENSEE's United States headquarters,
a source code version of LICENSED SOFTWARE to the operating systems identified
in Exhibit C, as amended from time to time by mutual agreement of the parties
hereto.
4.2 AT&T hereby further grants to LICENSEE a personal, nontransferable,
and non-exclusive right to reproduce, market, distribute, maintain and support
worldwide only object code versions of the ported LICENSED SOFTWARE to
End-User customers or other third parties in accordance with the minimum terms
and conditions set forth in Exhibit D.
4.3 No right is granted for the use of LICENSED SOFTWARE in source code
form for or by any third person except as provided above or for use of any
portion of LICENSED SOFTWARE in source code or object code form other than in
AT&T digital signal processors. AT&T grants LICENSEE the right of first
refusal to port VCOS to non-AT&T chips.
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4.4 LICENSEE may make those copies of LICENSED SOFTWARE necessary to the
use by LICENSEE for which rights are granted hereunder, provided that each
such copy contains any copyright and/or proprietary notice appearing on or in
the LICENSED SOFTWARE being copied.
4.5 LICENSEE agrees that it will not use or copy LICENSED SOFTWARE except
as authorized herein.
4.6 LICENSEE agrees that it will not develop and/or market a competitive
technology using techniques embodied in the LICENSED SOFTWARE during the term
of this Agreement and for a period of one (1) year following the expiration or
termination of this Agreement. AT&T agrees to forebear from developing,
marketing, distributing, maintaining and supporting any ported versions of the
LICENSED SOFTWARE for a period of one (1) year from the Effective Date of this
Agreement.
4.7 Certain software that may be included in LICENSED SOFTWARE may be
subject to third party patents. Third parties, of whom AT&T is aware, who may
maintain that they own pertinent patents are specified in Exhibit A. It is up
to LICENSEE to investigate and to obtain, at its own expense, any and all
third party licenses it needs or its customers need to utilize object code
versions of LICENSED SOFTWARE.
4.8 As general policy, AT&T does not recommend the use of any of its
products for medical or life support applications wherein a failure or
malfunction of the product may threaten life or cause injury and will not
knowingly license or sell its products for either such use. LICENSEE is not
authorized to license or furnish LICENSED SOFTWARE to customers whom LICENSEE
believes may intend to use LICENSED SOFTWARE for such applications except with
the prior written approval of AT&T.
5.0 SCOPE OF SOFTWARE ADAPTATIONS
5.1 The scope of changes to the LICENSED SOFTWARE by LICENSEE shall be
limited to:
5.1.1 Porting at LICENSEE's United States headquarters a source code
version of LICENSED SOFTWARE to the operating systems identified in
Exhibit C; and
5.1.2 Making enhancements for improved performance, including bug
fixes.
5.2 Except for those operating systems listed in Exhibit C, any other
adaptations of LICENSED SOFTWARE to other operating systems shall require
AT&T's approval in writing in the form of an amendment to this Agreement. Such
approval will not be unreasonably withheld.
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5.3 To ensure the quality associated with the LICENSED SOFTWARE for use
with AT&T digital signal processors. LICENSEE shall provide to AT&T beta test
versions of all adaptations in object code form for the sole purpose of
testing and evaluation by AT&T. The test period shall not exceed four (4)
weeks, after which AT&T shall return to LICENSEE all copies of beta test
versions of all adaptations in object code form provided by LICENSEE. In the
event that the adapted software fails to meet AT&T's quality standards for
software to be made generally available in the commercial marketplace, then
LICENSEE shall undertake commercially reasonable efforts to fix the adapted
software within a mutually agreed to time period.
6.0 FEES
License Fees for LICENSED SOFTWARE shall be specified by AT&T in a
separate written document and may be changed by AT&T upon written notice. Any
such writing shall become a part of this Agreement. Any increases in fees will
not exceed ten percent (10%) at any point in time and AT&T will give LICENSEE
at least six (6) months advance written notice of any such fee increase.
7.0 TAXES
Fees to be specified pursuant to Section 6.0 generally will not include
local, state or federal taxes. LICENSEE hereby agrees to pay all such taxes as
may be imposed upon LICENSEE or AT&T (other than taxes based on AT&T's income)
with respect to the marketing, reproduction, distribution, possession,
maintenance, support or use of LICENSED SOFTWARE pursuant to this Agreement.
8.0 DISTRIBUTION
Distribution rights granted to LICENSEE under this Agreement are
expressly specified in Exhibit B.
9.0 EXPORTS
LICENSEE hereby assures AT&T that it does not intend to and will not
knowingly, without the prior written consent (if required) of the Office of
Export Administration of the U.S. Department of Commerce. Xxxxxxxxxx, X.X.
00000, transmit, directly or indirectly;
(i) LICENSED SOFTWARE; or
(ii) any immediate product (including processes and services) produced
directly by or through the use of LICENSED SOFTWARE; or
(iii) any commodity produced by such immediate product if such immediate
product is a plant capable of producing a commodity or is a
substantial
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component of such plant:
to any group Q, S, W, Y, or Z country (or any national or resident of those
countries), as defined in the Export Administration Regulations of the U.S.
Department of Commerce.
10.0 CONFIDENTIALITY
10.1 LICENSEE agrees to keep LICENSED SOFTWARE (including methods and
concepts utilized therin) in confidence. LICENSEE shall ensure that an
obligation not to disclose confidential information is a part of the terms and
conditions of employment for its employees.
10.2 AT&T agrees to keep LICENSEE's proprietary information in
confidence. AT&T shall ensure that an obligation not to disclose confidential
information is a part of the terms and conditions of employment for its
employees.
10.3 The receiving party's obligations under this Section shall not apply
to any information relating to AT&T's LICENSED SOFTWARE (including any method
or concept utilized therein) or LICENSEE's proprietary information that:
(i) is or becomes available without restriction to the general public
by acts not attributable to the receiving party or its employees;
(ii) was rightfully in the receiving party's possession without
limitation on disclosure before disclosure hereunder to the
receiving party;
(iii) is rightfully disclosed to the receiving party by a third party
without restrictions on disclosure; or
(iv) is independently developed by the receiving party.
11.0 OWNERSHIP OF LICENSED SOFTWARE
11.1 LICENSED SOFTWARE is solely the property of AT&T IPM CORP. LICENSEE
understands and acknowledges that no ownership interest in LICENSED SOFTWARE
is transferred to LICENSEE or to any third party by virtue of this Agreement.
11.2 LICENSEE hereby grants to AT&T IPM CORP. all right, title and
interest in and to any and all ported versions of LICENSED SOFTWARE and
further including but not limited to any and all enhancements, UPDATES,
adaptations, modifications and improvements based on any ported version of
LICENSED SOFTWARE.
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11.3 After the one (1) year period specified in Section 11.3. AT&T may
contract with other parties for the development, marketing, distribution,
maintenance and support of software having functionality similar to the ported
versions of LICENSED SOFTWARE made by LICENSEE, or AT&T may develop, market,
distribute, maintain and support similar software independently. LICENSEE
shall not share any of its own confidential information with AT&T.
12.0 DISCLAIMER OF AT&T WARRANTIES
12.1 AT&T MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED. BY WAY
OF EXAMPLE, BUT NOT LIMITATION, AT&T MAKES NO REPRESENTATION OR WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT USE OF LICENSED
SOFTWARE WILL NOT INFRINGE ANY COPYRIGHT OR TRADEMARK OF A THIRD PARTY.
ADDITIONALLY, AT&T SHALL NOT BE HELD TO ANY LIABILITY WITH RESPECT TO ANY
CLAIM ON ACCOUNT OF, OR ARISING FROM, THE USE OF LICENSED SOFTWARE. AT&T IS
NOT AWARE OF ANY SUCH CLAIM BY ANY THIRD PARTY, EXCEPT AS SPECIFIED IN SECTION
4.7.
12.2 AT&T SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM OR
SUIT TO THE EXTENT THE INFRINGEMENT ARISES DIRECTLY FROM THE COMBINATION,
OPERATION, OR USE OF LICENSED SOFTWARE WITH DEVICES, PARTS, OR SOFTWARE NOT
SUPPLIED BY AT&T OR ITS SUBCONTRACTORS AND SUCH CLAIMS OF INFRINGEMENT WOULD
HAVE BEEN AVOIDED BUT FOR THE COMBINATION, OPERATION, OR USE OF THE LICENSED
SOFTWARE WITH SUCH DEVICES, PARTS, OR SOFTWARE.
13.0 LICENSEE WARRANTY
LICENSEE, on its own behalf, may warrant LICENSED SOFTWARE to its
customers as it deems appropriate. LICENSEE shall NOT provide any warranty to
its customers on behalf of AT&T with respect to LICENSED SOFTWARE.
14.0 NO POWER TO BIND AT&T
LICENSEE specifically assures AT&T that it will not extend, directly or
indirectly, any warranty or representation in the name of AT&T or purport to
bind AT&T in any way. LICENSEE further agrees that it will indemnify AT&T and
hold it harmless from any claim arising out of LICENSEE's exercise of any of
the rights granted in this Agreement.
15.0 LIMITED SUPPORT
AT&T will provide limited support, to LICENSEE only, in accordance with
AT&T's general support program for the source code version of LICENSED
SOFTWARE operating
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under the Windows environment. Under no circumstances will AT&T provide any
level of support for any of the ported versions of LICENSED SOFTWARE or any
object code versions of LICENSED SOFTWARE. Neither the execution of this
Agreement nor anything in it or in LICENSED SOFTWARE shall be construed as an
obligation upon AT&T to furnish any other assistance of any kind whatsoever,
or to provide any information or documentation.
16.0 LIMITATION OF LIABILITY
AT&T shall in no event be liable to LICENSEE or any third party for loss
of time, inconvenience, loss of use of any products or property damage caused
by LICENSED SOFTWARE in source or object code form or its failure to work, or
for any special, incidental or consequential loss or damages arising out of
the use of or inability to use LICENSED SOFTWARE in source or object code form
(whether in an action for or arising out of alleged breach of warranty,
alleged breach of contract, delay, negligence, strict liability or otherwise),
even if AT&T has been advised of the possibility of such damages. No action or
proceeding against AT&T may be commenced more than two years after the last
delivery, as specified in Exhibit D, by AT&T to LICENSEE of LICENSED SOFTWARE.
LICENSEE agrees to defend and indemnify AT&T from any and all claims, suits,
and liabilities (including attorney's fees) arising out of or resulting from
any actual or alleged act or omission on the part of LICENSEE, its authorized
third parties, employees or agents, in connection with the distribution of
LICENSED SOFTWARE to End-Users, including, without limitation, claims, suits
and liability for bodily or other injuries to End-Users resulting from use of
LICENSEE PRODUCT not caused solely by faults in LICENSED SOFTWARE as provided
by AT&T to LICENSEE.
17.0 TERMINATION FOR BREACH
AT&T may initiate termination of this Agreement for cause by giving to
LICENSEE sixty (60) days prior written notice specifying the reason for
termination, which termination shall occur unless such reason for termination
is cured within the sixty (60) day period. A right to terminate under this
Section 17.0 shall arise upon the happening of any of the following events:
(i) if LICENSEE becomes the subject of a bankruptcy petition filed in a
court in any jurisdiction, whether voluntary or involuntary; or a
receiver or a trustee is appointed for all or a substantial portion
of LICENSEE's assets; or LICENSEE makes an assignment for the
benefit of its creditors; or
(ii) if LICENSEE fails to perform substantially any material covenant,
obligation, representation or warranty under this Agreement
including but not limited to the timely payment of any license fees
specified under this Agreement.
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18.0 TERMINATION PROCEDURE
18.1 Upon termination of this Agreement, LICENSEE will promptly comply
with the termination procedures described herein, and shall certify in writing
to AT&T that the procedures described herein have been complied with.
18.1.1 Upon termination, the following procedures shall be executed
by LICENSEE within thirty (30) working days:
18.1.2 If applicable, LICENSEE will promptly return to AT&T, at
LICENSEE's expense and as instructed by AT&T, all AT&T-furnished copies
of LICENSED SOFTWARE and any reproductions thereof whether in ported or
unported form in its inventory. If this Agreement is terminated by AT&T,
AT&T will refund any payment made by LICENSEE for unopened, returned
copies in undamaged condition, but not freight, shipping and/or other
handling costs, as applicable.
18.1.3 If applicable, LICENSEE shall cease promotion, marketing,
reproduction, use, distribution, maintenance and support of LICENSED
SOFTWARE and destroy any copies in its inventory.
18.1.4 LICENSEE shall, at its expense, remove all copies of LICENSED
SOFTWARE and/or documentation from its distribution channels and destroy
such copies. Upon termination of this Agreement, any end user licenses
already granted by LICENSEE pursuant to Exhibit D shall not be affected.
18.1.5 LICENSED SOFTWARE and/or documentation shall be removed from
all LICENSEE PRODUCT not yet shipped to customers at the time of
termination and destroyed or returned to AT&T.
18.1.6 LICENSEE shall indemnify, hold harmless and defend AT&T
against any claims arising out of termination of this Agreement.
19.0 USE OF AT&T TRADEMARKS
19.1 LICENSEE recognizes AT&T's rights in its trademarks, service marks,
trade names and logos, including VCOS(R). Except as permitted by United States
trademark law and expressly provided herein, nothing in this Agreement shall
imply the grant to LICENSEE of a license to use (i) any trademark, service
xxxx, trade name or logo of AT&T or any of its affiliates in connection with
the advertising, licensing, marketing or any other use by LICENSEE of LICENSED
SOFTWARE, or (ii) any trademark, service xxxx, trade name or logo that is
confusingly similar to a name or xxxx used by AT&T or any of its affiliates.
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19.2 LICENSEE shall include, in its packaging, documentation, promotional
materials, advertising and, where applicable, installation screen
("materials") concerning all LICENSEE PRODUCTS, the following statement "AT&T
VCOS Software included." LICENSEE shall label disks "AT&T VCOS(R) Operating
System". Such statement or disk label shall be of a size, and in a location,
sufficient for reasonable visibility, but less prominent than LICENSEE's own
name and trademarks(s). All such materials shall be subject to AT&T's prior
approval before use by LICENSEE. LICENSEE shall submit two (2) copies of all
proposed materials to AT&T for such prior approval. AT&T will notify LICENSEE
either of its approval or any necessary remedial action in writing within
twenty (20) days of receipt of such material.
19.3 LICENSEE shall not represent, directly or indirectly, that any
product or service of LICENSEE is a product or service of AT&T or any of its
affiliates.
20.0 NOTICES
All notices required or permitted under this Agreement shall be in
writing and shall be deemed given: (i) when delivered personally; (ii) when
sent by confirmed telex or facsimile; (iii) five (5) days after having been
sent by registered or certified mail, return receipt requested, postage
prepaid; or (iv) one (1) day after deposit with a commercial overnight
carrier, with written verification of receipt. All communications will be sent
to the addresses set forth below. Either party may change its address by
giving notice pursuant to this Section 20.0.
if to AT&T: if to LICENSEE:
AT&T Corp. Ariel Corporation
AT&T Microelectronics 000 Xxxxx Xxxx
Wireless and Messaging Organization Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Xxxx 00X-000 Tel. No.: 000-000-0000
0000 Xxxxx Xxxxx Xxxxx Xxxxxxxxx Fax No.: 000-000-0000
Xxxxxxxxx, XX 00000
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
With a copy to:
AT&T Law Division
AT&T Microelectronics
Room 00X-0x
Xxx Xxx Xxx
Xxxxxxxx Xxxxxxx, XX 00000
Fax No.: 000-000-0000
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21.0 AUTHORITY
AT&T and LICENSEE each represents and warrants to the other that it has
the right and power to enter into this Agreement, and that there are no
outstanding assignments, grants, licenses, encumbrances, obligations or
agreements, either written, oral or implied, inconsistent with any provision
of this Agreement.
22.0 FORCE MAJEURE
Neither party shall be held responsible for any delay or failure in
performance of any part of this Agreement to the extent such delay or failure
is caused by fire, flood, explosion, war, strike, embargo, government action
or failure to act, civil or military authority, act of God, inability to
secure material or transportation facilities, act of omission of carriers or
other causes beyond its control whether or not similar to the foregoing.
23.0 HEADINGS
Section headings used in this Agreement are used for convenience only and
shall in no event be used for interpretation purposes.
24.0 NON-WAIVER
No failure by AT&T to enforce any provision of this Agreement shall
constitute a waiver or affect its right to require the performance thereof by
LICENSEE or affect the validity of any other provision.
25.0 ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the parties
and supersedes any and all prior oral or written agreements, memoranda,
letters of intent, representations or understandings by or between the parties
relating to the subject matter hereof, including any provision of any purchase
order to the extent inconsistent herewith.
26.0 MODIFICATIONS
This Agreement shall not be modified, altered, changed or amended in any
respect unless in writing signed by a duly authorized representative of each
of the parties hereto.
27.0 RESTRICTION ON ASSIGNMENT
The rights and obligations provided under this Agreement may not be
transferred or assigned by LICENSEE without the prior written consent of AT&T,
which consent shall not be
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unreasonably withheld. Any attempted assignment in contravention of this Section
27.0 shall be void and ineffective.
28.0 SEVERABILITY
In the event any provision of this Agreement should be held invalid or
unenforceable, the remaining provisions of this Agreement, and any and all
concurrent agreements pertaining to LICENSED SOFTWARE, shall remain valid.
29.0 CHOICE OF LAW
This Agreement shall be governed by, and construed in accordance with,
the law of the State of New York, excluding its choice of law rules.
30.0 DISPUTE RESOLUTION
30.1 If a dispute arises out of or relates to this Agreement, or the
breach, termination or validity thereof, the parties agree to submit the
dispute to a sole mediator selected by the parties or, at any time at the
option of a party, to mediation by the American Arbitration Association
("AAA"). If not thus resolved, it shall be referred to a sole arbitrator
selected by the parties within thirty (30) days of the mediation, or in the
absence of such selection, to AAA arbitration which shall be governed by the
United States Arbitration Act.
30.2 Any award made (i) shall be a bare award limited to a holding for or
against a party and affording such remedy as is deemed equitable, just and
within the scope of this Agreement; (ii) shall be without findings as to
issues or a statement of the reasoning on which the award rests: (iii) may in
appropriate circumstances include injunctive relief; and (iv) may be entered
in any court.
30.3 The requirement for mediation and arbitration shall not be deemed a
waiver of any right of termination under this Agreement and the arbitrator is
not empowered to act or make any award other than based solely on the rights
and obligations of the parties prior to any such termination.
30.4 The arbitrator may not limit, expand or otherwise modify the terms
of this Agreement.
30.5 This agreement shall be interpreted in accordance with the laws of
the State of New York, excluding its choice of law rules, and the place of
mediation and arbitration shall be New York City.
30.6 Each party shall bear its own expenses but those related to the
compensation and expenses of the mediator and arbitrator shall be borne
equally.
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30.7 A request by a party to a court for interim measures shall not be
deemed a waiver of the obligation to mediate and arbitrate.
30.8 The parties, their representatives, other participants and the
mediator and arbitrator shall hold the existence, content and result of
mediation and arbitration in confidence.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate originals through their duly authorized officials.
AT&T CORP.
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Signature
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Title
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Date
ARIEL CORPORATION
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Signature
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EXHIBIT A
SUMMARY OF AT&T LICENSED SOFTWARE
1.0 LICENSEE RESPONSIBILITIES
1.1 As specified in Section 4.3 of the AT&T Software Agreement, certain
third parties, identified below, may maintain that they own patents pertinent
to LICENSED SOFTWARE. It is up to LICENSEE to investigate and to obtain, at
LICENSEE's expense, any necessary licenses before LICENSEE or any customer of
LICENSEE uses such software.
1.2 Applicable Third Parties for MPEG Audio Encode and Decode:
AEG-Telefunken JVC
Xxxx Communications Research (Bellcore) Kokusai Denshin Denwa (KDD)
British Telecom (BT) NEC
CCETT (France) Philips N.V.
Compression Labs, Inc. (CLI) PictureTel
Fraunhofer-Gesellschaft (FhG) Sharp
Hitachi Sony
Instit Fur Rundfunktechnik Gmbh (IRT) Vistacom
Intel
2.0 AT&T LICENSED SOFTWARE
2.1 AT&T agrees that the version of LICENSED SOFTWARE described herein
shall be equivalent in functionality, within the limits of the capabilities of
LICENSEE PRODUCT, to the "standard" LICENSED SOFTWARE furnished by AT&T. This
Section 2.0 specifies the applicable LICENSED SOFTWARE covered by the
Agreement.
2.1.1 Source Code
DSP Source Code sufficient to build the following VCOS/DSP3210 modules:
VCOS OS Modules: os, schedule
Debugger Modules: bp, bpsim, iostm
Speech Coding: sbcl6e, sbcl6d, sbc24e, sbc24d
Caller ID: cid, cidmon
Call Progress Detection: cpd_lpc, cpd, cpdmon, xxxxxx, pulsdial
Sample Rate Conversion (all): src*
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Host Source Code sufficient to build the following APIs and Utilities:
VCAS: Main VCOS Host API VRM: VCOS Resource Manager VTSP: VCOS TAPI
API Service Provider LLA: VCOS WAV API Service Provider VCSIM
Simulator VCD Debugger VCC C Compiler TaskWalk Utility Vcosify Utility
coffdump Utility d32ar Archiver d32as Assembler d32conv Utility d32cpp
Preprocessor d32dis Disasembler d32dump Utility d32hex Utility d321d
Utility d32make Utility d32nm Utility d32optim Utility d32sect Utility
d32size Utility d32strip Utility d32trans Utility
VCOS modem controller software
2.1.2 Object Code
DSP Binary:
All DSP binary as shipped in V1.21 VCOS 2/9/95 release of VCOS Runtime
Classic, and associated SDK, MDK, HDK development kits.
2.1.3 Documentation
Document Source:
SDK Manual
MDK Manual
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HDK Manual
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3.0 GRANT OF DISTRIBUTION RIGHTS
3.1 AT&T hereby grants to LICENSEE a worldwide, non-transferable, and
non-exclusive right to reproduce and distribute, and authorize third parties
to distribute, subject explicitly to the restrictions of this Exhibit B,
copies of LICENSED SOFTWARE in object code form only. LICENSEE shall require
that all authorized third parties agree in writing (i) to comply with the
terms and conditions of this AT&T Software Agreement, and (ii) not to make any
copy or copies of LICENSED SOFTWARE. LICENSEE shall assert its best efforts to
enforce such written agreements.
3.2 LICENSEE and authorized third parties may distribute LICENSED
SOFTWARE in object code form only and only with LICENSEE PRODUCT (or included
in LICENSEE PRODUCT through PRE-LOADING) to any End-User and only in
combination with a written agreement supplied by LICENSEE which either (i) is
signed by the End-User, or (ii) is placed on the package containing LICENSED
SOFTWARE that is fully visible to the End-User and that the End-User accepts
by opening the package, or (iii) where LICENSED SOFTWARE is included in
LICENSEE PRODUCT through PRE-LOADING, is (1) referenced in a sticker on
LICENSEE PRODUCT which is visible to an End-User before the End-User opens the
package containing LICENSEE PRODUCT, and (2) is placed on a package containing
End-User documentation that is fully visible to the End-User and that the
End-User accepts by opening the package containing such documentation. Such
written agreement shall contain provisions fully consistent with those set
forth in Exhibit D. AT&T may, at its option require that such written
agreement be submitted for prior AT&T review and approval, which approval
shall not be unreasonably withheld. AT&T may also, at its option, revise any
provision or provisions of Exhibit D upon thirty (30) days' written notice to
LICENSEE.
3.3 LICENSEE shall distribute one (1) copy only of LICENSED SOFTWARE in
object code form only for each LICENSEE PRODUCT provided to an End-User;
provided however, in the course of furnishing to End-Users UPDATES (not
providing additional functionality) of LICENSED SOFTWARE, LICENSEE may
distribute additional copies of LICENSED SOFTWARE to such End-Users where such
distribution is intended to completely replace the previously distributed copy
of LICENSEE PRODUCT.
3.4 LICENSEE shall ensure that all copies of LICENSED SOFTWARE
distributed or copied pursuant to this Section 3.0 contain all relevant AT&T
trademark and copyright notices.
3.5 For each copy of LICENSED SOFTWARE distributed by LICENSEE or
authorized third parties pursuant to this Section 3.0, LICENSEE shall pay AT&T
the fees pursuant to the terms thereof, except for any replacement copies
provided pursuant to Section 3.3 above.
3.6 If and when AT&T makes UPDATES or other new versions of LICENSED
SOFTWARE generally commercially available, AT&T will use reasonable efforts to
create and/or, at LICENSEE's expense, lend all reasonable assistance and
authority to LICENSEE so as
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to enable LICENSEE to create, a new version of LICENSEE PRODUCT for
distribution under the terms and conditions of this Exhibit B.
3.7 LICENSEE shall, on a quarterly basis, provide AT&T, at Wireless and
Messaging Organization, Room 55A-310, 0000 Xxxxx Xxxxx Xxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxx 00000, a complete and current listing of third parties
authorized to distribute LICENSED SOFTWARE. AT&T shall hold such information
confidential and use such solely for the purpose of assisting AT&T in
marketing and further development of LICENSED SOFTWARE. Such listing shall be
accompanied by an accounting for all copies of LICENSED SOFTWARE made by
LICENSEE during the preceding quarter.
3.8 If an AT&T-provided sign-on logo and/or trademark notice is provided,
LICENSEE shall display such as part of the LICENSEE sign-on procedure for a
reasonable time to the End-User each time the End-User begins using (e.g.:
signs on, logs on, or activates) LICENSED SOFTWARE. Such AT&T-provided sign-on
notice may change with future LICENSED SOFTWARE. Any such changes shall be
provided to LICENSEE part of such future revisions of LICENSED SOFTWARE.
3.9 AT&T reserves the right to inspect LICENSEE's accounting and record
keeping materials applicable to LICENSED SOFTWARE, upon reasonable prior
written notification of not less than three (3) business days to the
LICENSEE's address in Section 19.0 of the AT&T Software Agreement for the
purpose of assuring compliance with these provisions. Such audit procedures
shall be in conformance with reasonable accepted practices. Such audits shall
be performed no more frequently than twice per calendar year.
AT&T / ARIEL Proprietary
- 20 -
EXHIBIT C
APPROVED OPERATING SYSTEMS
Ariel is granted rights to develop VCOS products for the following host UNIX
and UNIX-derivative operating system environments.
SysV, Novell, SCO, Linux, Interactive, Xinu, SunOS, Solaris, Ultrix, OSF,
VMS VxWorks, pSOS, OS9, LynxOS, VRTX, BE, SGI, BSDI, UnixWare and QNX.
Ariel is granted rights to develop VCOS products for the following OEM
proprietary operating system environments.
IBM OS/2, IBM OS/2 Warp, Amiga OS, Windows NT and Apple OS
AT&T / ARIEL Proprietary
- 21 -
EXHIBIT D
MINIMUM REQUIREMENTS FOR END-USER SOFTWARE LICENSE AGREEMENT
This Exhibit D describes the MINIMUM AT&T requirements for an End-User
software license agreement to be provided by LICENSEE to its customers in lieu
of an AT&T-provided End-User Software License Agreement (the "End-User
Agreement") for use in accordance with Exhibit B.
1.0 OWNERSHIP OF LICENSED SOFTWARE
Each End-User Agreement shall provide that LICENSED SOFTWARE is owned by
AT&T and/or its suppliers, that it is protected by United States and
international copyright laws and contains proprietary information protected by
law, and that nothing in the End-User Agreement constitutes a waiver by AT&T
of its rights under any copyright law or treaty or any other law in any
country.
2.0 LICENSE GRANT
2.1 LICENSEE may grant each End-User a personal, non-transferable and
nonexclusive right to use one (1) copy of LICENSED SOFTWARE in the End-User's
country only; on or with a single terminal connected to a single computer
(CPU) at a time. No right may be granted to use LICENSED SOFTWARE on a network
server; for such purposes the End-User must obtain a version of LICENSED
SOFTWARE configured for network usage and agree to the terms and conditions of
a separate Network LICENSED SOFTWARE License Agreement. The End-User may make
a single archive copy of LICENSED SOFTWARE for personal use only, provided
such copy contains the same copyright notices and proprietary markings,
including diskette markings, appearing on the original LICENSED SOFTWARE. Any
other use of LICENSED SOFTWARE or export of LICENSED SOFTWARE not authorized
by AT&T shall automatically terminate the License to the End-User.
2.2 Each End-User must agree not to reverse assemble, reverse compile,
reverse engineer, disassemble, sublicense, rent, lease, disclose or assign
LICENSED SOFTWARE and not to use, copy, modify, merge or transfer copies of
LICENSED SOFTWARE or create derivative works from LICENSED SOFTWARE, or make
copies of LICENSED SOFTWARE, except as provided in the End-User Agreement.
2.3 If an End-User ceases using LICENSED SOFTWARE or if the End-User's
right to use LICENSED SOFTWARE is terminated, all LICENSED SOFTWARE, together
with any archive copy thereof, shall either be returned to LICENSEE or
destroyed.
AT&T / ARIEL Proprietary
- 22 -
3.0 LIMITED WARRANTY
LICENSEE may extend to End-Users a "standard" End-User limited software
warranty as it deems appropriate. LICENSEE shall not provide any warranty to
End-Users on behalf of AT&T with respect to LICENSED SOFTWARE.
4.0 MAINTENANCE
Maintenance for all software shall be provided by LICENSEE. AT&T shall
have no obligation to provide any assistance whatsoever to LICENSEE's End-User
or others.
5.0 EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITIES
5.1 LICENSEE shall require End-Users to agree that their sole remedy for
loss and/or damage caused by any defect or failure in LICENSED SOFTWARE,
regardless of the form of action, shall be limited to the replacement of
LICENSED SOFTWARE or refund of the license fee by LICENSEE, except for a right
to claim damages for bodily injury to any person.
5.2 Neither AT&T nor its affiliates, contractors, suppliers or agents
shall be liable for any indirect, incidental or consequential damages
(including loss of profits, revenues or data) sustained or incurred in
connection with the use, or inability to use, software or for damages due to
causes beyond the reasonable control of such entities.
6.0 UNITED STATES GOVERNMENT RESTRICTED RIGHTS
LICENSED SOFTWARE is provided to agencies of the U.S. Government only with
RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government and
its contractors is subject to restrictions set forth in subdivision (g) (3) of
the Rights in Data - General clause in Volume 48 of the Code of Federal
Regulations, Section 52.227-14, Art. III, or in subdivisions (c) (1) and (2)
of the Rights in Technical Data and Computer Software clause at Section
252.227-7013, or others, as applicable. The contractor/manufacturer is AT&T
Corp., AT&T Microelectronics, Xxx Xxx Xxx, Xxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000.
7.0 EXPORT
End-Users must acknowledge that LICENSED SOFTWARE is subject to export
restrictions under U.S. Export Administration Regulations and international
arrangements of the U.S. Government. Each End-User must agree not to export
LICENSED SOFTWARE outside the End-User's country without obtaining prior
written approval from AT&T and conforming with all such U.S. Government
regulations and arrangements.
AT&T / ARIEL Proprietary
AMENDMENT NO. 1
to
SOFTWARE AGREEMENT
between
LUCENT TECHNOLOGIES INC.
(formerly AT&T CORP.'s Systems and Technology Business)
and
ARIEL CORPORATION
dated
May 2, 1995
The above-referenced agreement is hereby amended by the parties as
follows:
1. All references to AT&T Corp. throughout the above-referereced agreement are
changed to Lucent Technologies Inc. and all references to AT&T throughout the
above-referenced agreement are changed to LUCENT;
2. Add a new WHEREAS clause as follows: --WHEREAS, LICENSEE is willing to
support any and all existing LUCENT LICENSED SOFTWARE users;--;
3. In Section 3.0 delete the text "twenty-four (24) months" and replace it
with -five (5) years from the date of signing by both parties of this
Amendment No.
1-;
4. In section 4.3 at line 2 after "above" insert a period and delete the
remainder of this section in its entirety;
5. In Section 4.0 add a new section 4.9 which reads as follows: --4.9 In
consideration of the extension of the Agreement, LICENSEE agrees to provide
any and all support required by existing LUCENT VCOS systems users for a
period of six (6) months pending completion of negotiations for an expanded
relationship with LICENSEE.-- and add a new section 4.10 which reads as
follows: -.4.10 LUCENT agrees to refrain from any licensing of the LICENSED
SOFTWARE to any third parties for a period of at least six (6) mouths pending
completion of negotiations for an expanded relationship with LICENSEE.--;
6. In Section 6.0 delete the present text in its entirety and substitute the
following new text:
--Lucent Tech./ Other Processors
80x86/Pentium/
Power PC
License Fee/copy $0.00 $1.00
(Any Quantity)
LICENSEE agrees to pay to LUCENT the total amount of royalties due at the end
of the six (6) month period commencing upon the execution of this Amendment.
In the event the aggregate amount of such royalties due does not include a
quantity of units in excess of 25k, then
LICENSEE shall be permitted to accrue the quantity and make payment in the
next six (6) month period when the aggregate quantity reaches an amount in
excess of 25k units.-;
7. In Sections 11.1 and 11.2 change all references to AT&T IPM CORP to LUCENT
TECHNOLOGIES INC.,
8. In Section 15.0 delete this section in its entirety and substitute the
following --LUCENT will not provide any on-going support of the LICENSED
SOFTWARE.--;
9. In Exhibit B add to the definition of LICENSED PRODUCT(S) the following:
--Teradon and derivative products; and
VCOS object code.--; and
10.. In Exhibit C at the end of line 7 add the following --and Windows 3.11
and Windows `95--.
11. Except for the changes noted above, all other terms and conditions of the
above-referenced agreemnt remain in full force and effect.
This amendment shall be effective as of the latest of the dates indicated
below.
ARIEL CORPORATION LUCENT TECHNOLOGIES INC.
By: /s/ X. Xxxxxxx By: /s/ Xxxxxx Xxxx
----------------------- -----------------------------
Name: X. XXXXXXX Name: XXXXXX XXXX
Title: PRESIDENT Title: Strategy & Market Planning
Date: MARCH 19, 1998 Date: 3/13/96
AMENDMENT NO. 2
to
SOFTWARE AGREEMENT
between
LUCENT TECHNOLOGIES INC.
(formerly AT&T CORP.'s Systems and Technology Business)
and
ARIEL CORPORATION
dated
May 2, 1995
The above-referenced agreement, as amended by Amendment No. 1, is hereby further
amended by the parties as follows:
1. In Section 4.9 change "six (6) months" to --twelve (12) months--;
2. In Section 4.10 change "six (6) months" to --twelve (12) months--; and
3. In Section 6.0 change the sentence that now reads "LICENSEE agrees to pay
to LUCENT the total amount of royalties due at the end of the six (6) month
period commencing upon the execution of this Amendment." to --LICENSEE agrees
to pay to LUCENT the total amount of royalties due at the end of each six (6)
month period commencing upon the execution of this Amendment.--.
Except for the changes noted above, all other terms and conditions of the
above-referenced agreement remain in full force and effect.
This amendment shall be effective as of September 13, 1996.
ARIEL CORPORATION LUCENT TECHNOLOGIES INC.
By: /s/ X. Xxxxxxx By: /s/ Xxxxxx Xxxx
----------------------- -----------------------------
Name: X. XXXXXXX Name: XXXXXX XXXX
Title: PRESIDENT Title: Strategy & Market Planning
Date: MARCH 19, 1998 Date: 3/13/96
April 24, 1995
DSP32XX AND ROYALTY FEES FOR ARIEL
The following represents pricing for Ariel on DSP32XX devices and royalty fees
associated with the Software Agreement between Ariel Corp. and AT&T Corp. Upon
signature of the License Agreement, Ariel will pay a royalty fee (as outlined
below) with each DSP32XX purchase.
Per Device
Quantity DSP3210-60ns D5P3207-60ns D5P3207-72ns Royalty Fee
-------- ------------ ------------ ------------ -----------
1st 10K Units $40.00 $36.00 $26.00 $ 0.00
Next 30K Units $35.00 $32.00 $23.00 $ 5.00
40.001 & Greater $32.00 $30.00 $21.00 $ 5.00
Prior to this Sofware Agreement going into effect, 3210-60ns prices will
remain $50.00, 3207-60ns prices at $46.00. and 3207-72ns prices at $33.00.
/s/ Xxxxxxx Xxxxxxx
M. A. Xxxxxxx
DSP Product Marketing
