EXHIBIT 10.10
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS. OMITTED INFORMATION HAS BEEN REPLACED BY [*].
ENTERPRISE LICENSE AGREEMENT
THIS ENTERPRISE LICENSE AGREEMENT ("Agreement") is made and entered into as
of the last date executed by the parties below (the "Effective Date") by and
between Wind River Systems, Inc., a Delaware corporation having a principal
place of business at 000 Xxxx Xxxxx Xxx, Xxxxxxx, XX 00000 ("Wind River"), and
LSI Logic, a Kansas corporation having a principal place of business at 0000
Xxxxx Xxxx Xxxx, Xxxxxxx, XX 00000 ("Customer"). The parties agree as follows:
1. DEFINITIONS.
1.1 "CONFIDENTIAL INFORMATION" means: (i) the Software Source Code; (ii)
the technology, ideas, know how, documentation, processes, algorithms and trade
secrets embodied in the Software; (iii) any software keys related to the
Software; and (iv) any other information, whether disclosed orally or in written
or magnetic media, that is identified as "confidential," "proprietary" or with a
similar legend at the time of such disclosure. Confidential Information shall
not include any information which is: (a) published or otherwise available to
the public other than by breach of this Agreement by Customer, (b) rightfully
received by Customer from a third party without confidential limitations; (c)
independently developed by Customer as evidenced by appropriate records; (d)
known to Customer prior to its first receipt of same from Wind River as
evidenced by appropriate records; (e) hereinafter disclosed by Wind River to a
third party without restriction on disclosure; or (f) approved for public
release by written authorization of Wind River. If any Confidential Information
must be disclosed to any third party by reason of legal, accounting or
regulatory requirements beyond the reasonable control of Customer, Customer
shall promptly notify Wind River of the order or request and permit Wind River
(at its own expense) to seek an appropriate protective order.
1.2 "CONTRACT YEAR" means the annual subscription license period during
which Customer may obtain the right to use the Development Licenses and
distribute Run-Time Modules, which period may be renewed by agreement by the
parties during the Subscription License Term pursuant to the terms and
conditions of this Agreement.
1.3 "DEVELOPMENT LICENSE" means the right of a unique User to use certain
Software pursuant to the terms and conditions of this Agreement, as set forth in
an Exhibit A. For clarification, Customer will use reporting technology to
assign each Development License to a unique User and no other User may use the
copy of the Software designated for that Development License.
1.4 "DEVELOPMENT LOCATION" means the specific address of each Customer
site or facility where the Software is installed and used, as specified in
Exhibit A or otherwise by Customer in writing to Wind River.
1.5 "END USER" means any entity to which Customer provides a Target
Application for further distribution or such entity's own use, pursuant to an
End User License Agreement.
1.6 "END USER LICENSE AGREEMENT" means a written license agreement in a
commercially reasonable form containing the restrictions specified in Section
3.5, pursuant to which Customer may sublicense to End Users the Run-Time Module
that is incorporated into a Target Application.
1.7 "EXHIBIT" means an attachment to this Agreement that the parties may
separately execute from time to time after the Effective Date to append this
Agreement.
1.8 "INTELLECTUAL PROPERTY RIGHTS" means all copyrights, trade secrets,
trademarks, patents, mask works and other intellectual property rights
recognized in any jurisdiction worldwide, including all applications and
registrations with respect thereto.
1.9 "OBJECT CODE" means computer programming code in the form not readily
perceivable by humans and suitable for machine execution without the intervening
steps of interpretation or compilation.
1.10 "OPERATING SYSTEM" means the Object Code that is part of Wind River's
operating system product families or other operating systems software that may
be provided by Wind River under this Agreement.
1.11 "PERMITTED MODIFICATIONS" means (i) without limitation, any
adaptations, modifications, improvements, enhancements, revisions or interface
elements created from the Software (whether such modifications are in Object
Code or Source Code) in any form or medium whatsoever, and (ii) any "derivative"
work of the Software as defined in the Copyright Law of the United States of
America, 17 U.S.C. sec.101 et seq.
1.12 "PURCHASE ORDER" means Customer's standard purchase order form
submitted by Customer to obtain development and/or distribution rights acquired
under this Agreement.
1.13 "RUN-TIME MODULE" means components of the Operating System and
Software Source Code, solely in Object Code form, to be incorporated into a
Target Application as inseparably embedded code.
1.14 "SOFTWARE" means (i) the computer programming code and accompanying
documentation, including updates (if any), provided by Wind River under this
Agreement, and (ii) all Permitted Modifications thereto and full or partial
copies thereof, whether such modifications or copies are provided by Wind River
or made by Customer as permitted under this Agreement. The definition of
Software includes without limitation the Operating System, Tools, Source Code,
or any combination of these.
1.15 "SOURCE CODE" means computer programming code in human readable form
that is not suitable for machine execution without the intervening steps of
interpretation or compilation.
1.16 "SUBSCRIPTION LICENSE TERM" means the license term of this Agreement
for the Software licensed hereunder, as set forth in an Exhibit A.
1.17 "SUPPORTED ARCHITECTURE FAMILY" means the target architecture family
or families then-supported by Wind River on which Customer may use the Software
pursuant to the terms and conditions of this Agreement, as specified in Exhibit
A or otherwise in writing by the parties.
1.18 "TARGET APPLICATION" means an item, device or system developed by
Customer that does not contain any Software development functionality and that
contains a Run-Time Module or any portion thereof.
1.19 "TOOLS" means the Object Code provided by Wind River under this
Agreement that is intended for Customer's internal use in developing
applications and not for incorporation into Target Applications or for
distribution.
1.20 "USER" means a Customer employee or independent contractor who is
based at a Development Location and who has signed a confidentiality agreement
with Customer in which such employee or independent contractor agree to protect
third party confidential information with terms no less stringent than those set
forth herein.
2. LICENSE GRANTS.
2.1 DEVELOPMENT LICENSE. Subject to Customer's compliance with the terms
and conditions of the Agreement and any Exhibit and payment of any applicable
annual fees, Wind River hereby grants to Customer, only during the Subscription
License Term, a restricted, personal, non-transferable, nonexclusive,
internal-use license: (i) for one (1) User to reproduce and use one (1) copy of
the Software for each Supported Architecture Family per Development License
licensed for such Software under Exhibit A; (ii) to reproduce a reasonable
number of the Run-Time Module for each Development License, solely in Object
Code, and solely for internal testing and development purposes by Customer,
(iii) to reproduce the Software for archive purposes, consistent with Customer's
standard archive procedures; (iv) to modify the Software Source Code, solely to
the extent necessary to support the development of a Target Application; and (v)
to compile the Software Source Code, including any modifications thereof, into
Object Code.
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2.2 PRODUCTION LICENSE. Subject to Customer's compliance with the terms
and conditions of this Agreement and any Exhibit, and Customer's payment of the
applicable fees, Wind River grants Customer, only during the Subscription
License Term, a non-exclusive, non-transferable, fee-bearing license: (i) to
reproduce the number of copies of the Run-Time Modules authorized in Exhibit A,
solely in Object Code; and (ii) to distribute such copies of the Run-Time
Modules to End Users worldwide solely as inseparably embedded content in the
Target Application, subject to an End User License Agreement.
3. CONDITIONS.
3.1 GENERAL. Except as expressly permitted by this Agreement, Customer
may not: (i) permit concurrent use of a single copy of the Software or use of a
Development License by anyone other than the unique individual User assigned to
each Development License; (ii) modify the Operating System or Tools; (iii)
translate, reverse engineer, decompile, disassemble (except to the extent
applicable laws specifically prohibit such restriction) or attempt to derive the
Source Code of Software provided to Customer in Object Code, or create
derivative works of the Operating System or Tools or let any third party do any
of the foregoing; (iv) reproduce the Operating System, Tools, or Source Code
other than as specified above; (v) sublicense, rent, lease, loan, timeshare,
sell, distribute, disclose, publish, assign or transfer any rights, grant a
security interest in, transfer possession of the Software or electronically
transfer the Software from one computer to another over a network other than
Customer's internal network as permitted under this Agreement; or (vi) alter or
remove any of Wind River's or its licensors' copyright or proprietary rights
notices or legends appearing on or in the Software. Customer shall reproduce
such notices on any copies of the Software Customer is permitted to make.
Customer is responsible for informing all Users of the restrictions set forth in
this Agreement with respect to use of the Software.
3.2 NETWORK ACCESS. Users who have a unique network log-in (e.g., NT or
Unix log-in) may be permitted to access the Software from a secure network
server located at the Development Location; provided, however, that any external
network access shall take place over a secure VPN or equivalent secure network.
Customer shall disclose to Wind River the Development Location of each network
where Software will be accessed.
3.3 TRANSFER OF USERS. A Development License may be transferred from one
User to another User within a Contract Year under the following conditions: (i)
unconditionally, at the end of the Contract Year Quarter, or (ii) during a
Contract Year Quarter if a User leaves the company and is replaced by another
User, has a name change due to a change in marital status, or has a network
UserID change due to IT configuration changes.
3.4 THIRD PARTY SOFTWARE. The Software licensed under this Agreement may
contain or be derived from materials of third party licensors. Such third party
materials may be subject to restrictions in addition to those listed in this
Section 3, which restrictions, if any, are set forth in an exhibit hereto.
3.5 RUN-TIME MODULE RESTRICTIONS. Customer shall not list or quote a
Run-Time Module as a separately priced item or option. Customer shall configure
the Run-Time Module within Customer's Target Applications, so that the Run-Time
Module will not operate apart from the operation of the Target Application.
3.6 END USER LICENSE AGREEMENTS. Customer shall take all steps necessary
to protect Wind River's and its licensors' proprietary rights in the Run-Time
Module and to ensure that each Run-Time Module distributed by Customer will be
accompanied by a localized copy of an End User License Agreement. Such End User
License Agreement shall prohibit the End User from: (i) copying the Run-Time
Module, except for archive purposes consistent with the End User's archive
procedures; (ii) transferring the Run-Time Module to a third party apart from
the Target Application; (iii) modifying, decompiling, disassembling, reverse
engineering or otherwise attempting to derive the Source Code of the Run-Time
Module; (iv) exporting the Run-Time Module or underlying technology in
contravention of applicable U.S. and foreign export laws and regulations; and
(v) using the Run-Time Module other than in connection with operation of the
Target Application. In addition, the End User License Agreement shall: (i) state
that the Run-Time Module is licensed, not sold and that Customer and its
licensors retain ownership of all copies of the Run-Time Module;
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(ii) expressly disclaim all implied warranties, including without limitation the
implied warranties of merchantability, fitness for a particular purpose, title
and non-infringement; (iii) exclude liability for any special, indirect,
punitive, incidental and consequential damages; and (iv) require that any
further distribution of the Run-Time Module be subject to the same restrictions
set forth herein. The End User License Agreement shad also state that, with
respect to the Run-Time Module, Wind River and its licensors are third party
beneficiaries of the End User License Agreement and that the provisions related
to the Run-Time Module are made expressly for the benefit of, and are
enforceable by, Wind River and its licensors.
3.7 AUTHORIZED MANUFACTURERS. Wind River grants Customer the right to
authorize a subcontractor to use the Software solely in Object Code form to
manufacture the Target Application for Customer (hereinafter "Authorized
Manufacturer"). The name and address of the Authorized Manufacturer shall be
specified in Exhibit A or provided to Wind River within [*] of Wind River's
reasonable request. Authorized Manufacturer shall acquire no rights in the
Software other than those expressly provided in this Section, and any use by
Authorized Manufacturer of the Software shall be prohibited unless working on a
"work for hire" basis for Customer solely in conjunction with manufacturing the
Target Application. Customer and Authorized Manufacturer shall enter into a
written agreement requiring Authorized Manufacturer to: (1) use the Software
exclusively for the above purpose, and (2) to apply at least the same level of
protection for Wind River's Software and Confidential Information as it applies
to its own confidential information, and in no event use less than commercially
reasonable efforts to protect Wind River's Software and Confidential
Information. Any breach by Authorized Manufacturer of its obligations under such
agreement with respect to the Software shall also constitute a breach by
Customer of this Agreement. Wind River shall be a third party beneficiary of the
agreement between Authorized Manufacturer and Customer.
4. OWNERSHIP.
Customer shall not have any obligation to provide or disclose to Wind River
any Permitted Modifications. Notwithstanding the foregoing, Wind River and its
licensors shall exclusively own all worldwide intellectual property rights in
and to the Software. Customer hereby assigns to Wind River all Intellectual
Property Rights it may have or obtain in and to the Software. All rights not
expressly granted to Customer in this Agreement are expressly reserved for Wind
River and its licensors.
5. CONFIDENTIAL INFORMATION; ACCESS TO SOURCE CODE.
5.1 ACCESS TO SOURCE CODE. Access to any Software Source Code shall be
limited to those Users who are authorized Users of such Software Source Code and
have signed a written agreement in which such User agrees to protect third party
confidential information with terms no less stringent than those set forth
herein. Customer agrees that any breach by any User of its obligations under
such confidentiality agreements shall also constitute a breach by Customer
hereunder. Customer shall maintain accurate written records of the names of all
employees and independent contractors who have had access to the Source Code.
Customer shall use its best efforts to protect the Software Source Code from
unauthorized access, reproduction, disclosure or use. In the event Customer
becomes aware of any unauthorized use or disclosure of the Software Source Code,
Customer shall notify Wind River immediately in writing and shall give full
cooperation, at Customer's expense, to minimize the effects of such unauthorized
use or disclosure. UPON TRANSFER OF ANY COPY OF THE SOFTWARE IN SOURCE CODE TO
ANOTHER PARTY, THIS LICENSE WILL AUTOMATICALLY TERMINATE.
5.2 CONFIDENTIAL INFORMATION. Customer shall not use or disclose any
Confidential Information, except as expressly authorized by this Agreement, and
shall protect all such Confidential Information using the same degree of care
which Customer uses with respect to its own proprietary information, but in no
event with safeguards less than a reasonably prudent business would exercise
under similar circumstances. Customer shall take prompt and appropriate action
to prevent unauthorized use or disclosure of the Confidential Information.
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6. TERMS AND TERMINATION
6.1 SUBSCRIPTION LICENSE TERM: Subject to Customer's payment of the
applicable fees, the Subscription License Term will be for one (1) Contract Year
commencing on the Effective Date, unless otherwise set forth in an Exhibit A.
Any successive Contract Year shall be a one (1) year period and shall extend the
Subscription License Term for such additional period.
6.2 RENEWAL OF LICENSES. The renewal date for all Software licensed
hereunder shall be the last day of each Contract Year, regardless when Customer
chooses to license additional Software during a Contract Year. Customer shall
notify Wind River at least [*] prior to the end of each Contract Year of its
request to renew its Software licenses. If Customer elects not to renew any
license for Software licensed hereunder, such license will terminate on the last
day of the then-current Contract Year.
6.3 EXPIRATION OF LICENSES. The licenses granted under this Agreement
terminate upon the expiration of any Contract Year specified in an Exhibit A
unless the parties mutually agree to renew such license, and Customer pays the
then-applicable fees, during the Subscription License Term as defined below.
6.4 TERMINATION FOR CAUSE. Either party may terminate this Agreement
immediately upon written notice for the material breach of the other party,
which material breach is curable and has remained uncured for a period of [*]
from the date of delivery of written notice thereof to the breaching party.
6.5 CONSEQUENCES OF EXPIRATION OR TERMINATION. Upon expiration or
termination, Customer shall: (i) not use the Software for any purpose
whatsoever, (ii) immediately destroy or return to Wind River all material
belonging to Wind River or its licensors, including without limitation all
Software, Run-Time Modules and Wind River Confidential Information then in
Customer's possession; (iii) cease the reproduction and distribution of the
Run-Time modules (except as provided below); and (iv) shall promptly certify to
Wind River that Customer has done so. Notwithstanding the foregoing, Customer
may retain one (1) copy of the Run-Time Module to support existing End Users
provided that Customer is then current with payments due to Wind River. Solely
in the event of a termination of this Agreement for Wind Rivers material breach,
Customer shall, for a period not to exceed [*] after the effective date of
termination, have the right to sell, pursuant to the terms of this Agreement,
any remaining Target Applications which were in Customer's inventory as of the
effective date of the termination. These remedies shall be cumulative and in
addition to any other remedies available to Wind River. All Sections except
Section 2, 3.2, 3.7 and 7 shall survive any expiration or termination of this
Agreement.
7. KEYS AND ACCESS.
Wind River agrees to provide to Customer those Software keys which are
reasonably necessary to permit Customer to gain access to the Software contained
on the media shipped to Customer and which Software has been properly licensed
to Customer pursuant to this Agreement. Notwithstanding anything to the contrary
in this Agreement, Customer hereby acknowledges that Customer shall have no
right or license to any software shipped to Customer on media as provided above
which software is not properly licensed pursuant to this Agreement, that any
such software is included therein, solely as a matter of administrative
convenience, and Customer further agrees not to attempt to gain access to, or
permit any third party to attempt to gain access to, such software. Customer
shall not disclose the Software keys to any third party. The Software contains
license management functionality that may cause the Software to cease operating
upon expiration or termination of the license. Customer shall not circumvent, or
attempt to circumvent, any license management, security devices, access logs, or
other measures provided in connection with the Software, or permit or assist any
User or any third party to do the same. Customer will be invoiced for any
additional Users who access the Software and shall pay any such invoice in
accordance with Section 9. Customer must follow the recommended installation
procedures for each Software product licensed under this Agreement. Customer's
failure to follow the recommended installation procedures is a breach of this
Agreement and, among other things, may result in inaccurate invoices for
additional usage of the Software.
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8. PURCHASE ORDERS.
In order to obtain additional Development Licenses or the right to
reproduce and distribute additional Run-Time Modules, Customer may submit a
Purchase Order to Wind River indicating thereon the number of Development
Licenses or additional Run-Time Module fees Customer wishes to license from Wind
River. Such Purchase Order may contain pre-printed or other written terms and
conditions and the parties understand and agree that except for the number of
licensed Development Licenses and licensed Run-Time Modules, such terms and
conditions shall have no effect whatsoever and that the terms of this Agreement
shall control. Wind River may reject any Purchase Order that is outside the
scope of this Agreement. Wind River will invoice Customer for such Development
Licenses and Run-Time Module licenses upon confirmation and acceptance of
Customer's Purchase Order.
9. DELIVERY, PAYMENT, TAXES AND RECORDS.
9.1 DELIVERY AND PAYMENT TERMS. The Software shall be deemed irrevocably
accepted upon shipment. Customer shall pay to Wind River the applicable Software
license fees set forth in Wind River's current price list, unless otherwise
agreed to in writing by the parties. License fees will be invoiced upon shipment
of the Software or upon Customer's addition of Users for any Software licensed
hereunder. All payment terms herein are subject to prior credit approval by Wind
River. Customer shall pay all invoices within [*] of the date of such invoice
or, for production fees not pre-paid to Wind River, no later than the last day
of the first full month after the end of each Contract Year Quarter (accompanied
by the quarterly License Report), in U.S. dollars unless otherwise set forth in
Exhibit A. Interest on any late payments shall accrue at the rate of [*] during
which any sums under any such payment invoices were owed and unpaid, or the
highest rate permitted by law, whichever is lower, from the date such amount is
due until finally paid. Any failure of Customer to make payment of any payment
invoice in the manner described in this Section may, at Wind River's discretion,
be deemed a material breach of this Agreement for purposes of Section 6.4.
9.2 TAXES. All payments and amounts due hereunder shall be paid without
deduction or set-off or counter claim, free and clear of any restrictions or
conditions, and without deduction for any taxes, levies, imposts, duties, fees,
deductions, withholdings or other governmental charges. If any deduction is
required to be made by law, Customer shall pay in the manner and at the same
time such additional amounts as will result in receipt by Wind River of such
amount as would have been received by Wind River had no such amount been
required to be deducted. If Customer is claiming sales or use tax exemption, a
certified Tax Exempt Certificate must be attached to this Agreement or
applicable Purchase Order submitted by Customer. Customer shall promptly pay or
reimburse all federal, state and local taxes (exclusive of taxes on Wind River's
net income), duties and assessments, if any, due, arising from or measured by
amounts payable to Wind River under this Agreement, or furnish Wind River with
evidence acceptable to the taxing authority necessary to sustain any exemption
therefrom.
9.3 RECORDS; PRODUCTION NOTICE; LICENSE REPORTS. Customer shall maintain
complete, current and accurate records of the location of each copy of the
Software in Customer's possession, the location of all Users thereof, and the
number of all Users of the Development Licenses, and the number, date, and
recipient of all Run-Time Module copies made and manufactured by or for Customer
in Target Applications. Customer shall submit to Wind River a notice that it has
commenced production within [*] of Customer's commencement of manufacture of
Run-Time Modules. In addition, Customer shall submit to Wind River, no later
than the last day of the first full month after the end of each Contract Year
Quarter, a written report ("License Report") which shall set forth the following
information: (i) the number of Run-Time Modules and Target Applications
manufactured by or for Customer, (ii) calculation of the Run-Time Module fees
due to Wind River, (iii) identification of the Development Location(s),
Supported Architecture Family(ies), and number of Development Licenses licensed
hereunder, (iv) usage reports generated through the license management
technology in the Software; and such other information as Wind River may
reasonably request. Wind River may provide, from time to time, a form License
Report that Customer agrees to follow with respect to carrying out the foregoing
obligations. If no Run-Time Modules were manufactured within a given quarter,
Customer shall so certify in the License Report. Except where Customer is
reporting Run-Time Modules for which Customer has pre-paid Wind River its
applicable per copy fees, Customer shall enclose
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with the License Report Wind River's stipulated per copy fee for each copy of
the Run-Time Module reproduced and manufactured during the period reported.
Customer's failure to submit an accurate License Report and any applicable
payments may, at Wind River's discretion, be deemed a material breach of this
Agreement.
9.4 CUSTOMER COMPLIANCE. To ensure compliance with the terms of this
Agreement, Wind River or its designated representative shall have the right to
(i) request that Customer send a written certification of compliance with the
terms and conditions of this Agreement within [*] of Wind River's request; and
(ii) conduct an inspection and audit upon reasonable notice of the records set
forth in Sections 3.2, 5.1, and 9.3 of this Agreement; electronic logs of access
to the Software, and the relevant operational, accounting and sales books and
accords of Customer, and to obtain true and correct photocopies thereof, during
regular business hours at Customer's offices and in such a manner as not to
interfere unreasonably with Customer's normal business activities. In no event
shall such certifications be requested or audits be conducted hereunder more
frequently than once every [*]. If any such audit should disclose any
underpayment of fees, Customer shall promptly pay Wind River such underpaid
amount, together with interest thereon at a rate of [*] during which such amount
was owed and unpaid, or the highest rate allowed by law, from the date such
amount originally became due until finally paid. If the audit reveals that
Customer has underpaid Wind River by [*] or more of the amount owed for any
period audited, then Customer shall immediately reimburse Wind River for its
reasonable costs and expenses associated with such audit.
10. LIMITED WARRANTY.
10.1 LIMITED WARRANTY. Wind River warrants that the media on which the
Software is delivered will be free from defect in materials or workmanship for a
period of [*] from the date of shipment of such media to Customer ("Warranty
Period"). If during the Warranty Period the media on which Software is delivered
proves to be defective, Wind River will repair or replace such media, at Wind
River's option, as Customer's sole remedy for any breach of warranty hereunder.
Customer assumes full responsibility for: (i) the protection of the Software;
(ii) the proper installation and use of the Software; (iii) verifying the
results obtained from the use of the Software; and (iv) taking appropriate
measures to prevent loss of data.
Wind River does not warrant that the quality or performance of the Software will
meet Customer's requirements or that Customer will be able to achieve any
particular results from use or modification of the Software or that the Software
will operate free from error.
10.2 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1,
WIND RIVER AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND
STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF
THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WIND
RIVER, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE
THE SCOPE OF THIS WARRANTY. Some jurisdictions do not allow the limitation or
exclusion of implied warranties or how long an implied warranty may last, so the
above limitations may not apply to Customer. This warranty gives Customer
specific legal rights and Customer may have other rights that vary from
jurisdiction to jurisdiction.
11. SUPPORT; SERVICES.
The Software license fees include Software support and maintenance and
Software Upgrades in accordance with the terms and conditions of the Wind River
Systems, Inc. Software Support and Maintenance Agreement during the Subscription
License Term. The Software license fees also include a specified number of
credits that may be applied to consulting, installation and training services
engagements that are listed in Wind River's then-current published price list,
as set forth in an Exhibit A or otherwise agreed in writing by the parties
referencing this Agreement ("Services"). Additional information on Wind River's
support and Services offerings is available from a Wind River sales
representative. Wind River will use reasonable commercial efforts to complete
any Services. Any software developed in performance of the Services shall be
deemed "Software" as defined in this Agreement, and all provisions in this
Agreement
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applicable to the Software (including, without limitation, license grants,
indemnities and ownership, but specifically excluding any support and
maintenance obligations under this Section 11) shall apply to the software
developed in performance of the Services. Services credits may also be applied
to engagements other than those listed in Wind River's then-current price list;
however, such engagements shall be subject to the terms and conditions of a
separate services agreement to be entered into between the parties. All Services
credits issued to Customer during a Contract Year shall expire at the end of
such Contract Year.
12. INFRINGEMENT INDEMNITY.
Wind River will defend at its expense and indemnify Customer from and
against any losses, costs or damages arising from any claims filed by third
parties against Customer insofar as such claims assert that the Software, as
provided to Customer, infringes a previously issued patent, trade secret or
copyright, provided that Wind River is notified promptly of such claim and is
given full and complete authority (including settlement authority), information
and assistance by Customer for such defense. In the event that the Software is
held in any such suit to infringe such a right and its use is enjoined, or if in
the opinion of Wind River the Software is likely to become the subject of such a
claim, Wind River at its own election and expense will either (i) procure for
Customer the right to continue using the Software or (ii) modify or replace the
Software so that it becomes non-infringing while giving substantially equivalent
performance. In the event that (i) or (ii) above are not, in Wind River's sole
determination, obtainable using reasonable commercial efforts, then Wind River
may terminate this Agreement and refund amounts Customer paid Wind River under
this Agreement for the Software which is the subject of such claim for the
then-current Contract Year. The Indemnification obligation shall not apply to
infringement actions or claims to the extent that such actions or claims are
based on or result from: (i) modifications made to the Software by a party other
than Wind River, (ii) the combination of the Software with items not supplied by
Wind River, and (iii) Customer's failure to use the most recent version of the
Software provided by Wind River to Customer. THIS SECTION STATES CUSTOMER'S SOLE
AND EXCLUSIVE REMEDY AND WIND RIVER'S ENTIRE LIABILITY FOR ANY CLAIM OF
INFRINGEMENT.
13. CUSTOMER INDEMNITY.
Customer will defend at its expense and indemnify Wind River from and
against any losses, costs or damages resulting from or in connection with any
claims filed by third parties resulting from or in connection with the use,
manufacture, or distribution of Target Applications by Customer and Customer's
direct and indirect End Users in the country, provided that Wind River gives
Customer prompt written notice of any such claim, tenders to Customer the
defense or settlement of any such claim at Customer's expense, and cooperates
with Customer, at Customer's expense, in defending or settling such claim. This
indemnification obligation shall not apply to infringement actions or claims if
such actions or claims are based solely on the use of the software in the form
provided by Wind River.
14. LIMITATION OF LIABILITY.
WIND RIVER AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR
INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR
THE LIKE) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY,
EVEN IF WIND RIVER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO
EVENT WILL WIND RIVER'S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING
OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID TO WIND RIVER BY
CUSTOMER PURSUANT TO THIS AGREEMENT. Some jurisdictions do not allow the
exclusion or limitation of incidental or consequential damages so this
limitation and exclusion may not apply to Customer.
THE LIMITED WARRANTY, LIMITED REMEDIES, WARRANTY DISCLAIMER AND LIMITED
LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN
8
BETWEEN WIND RIVER AND CUSTOMER. WIND RIVER WOULD NOT BE ABLE TO PROVIDE THE
SOFTWARE WITHOUT SUCH LIMITATIONS.
15. GENERAL.
15.1 GOVERNING LAW AND FORUM. This Agreement shall be governed in all
respects by the laws of the United States of America and the State of New York
without regard to conflicts of law principles. The parties agree that the United
Nations Convention on Contracts for the International Sale of Goods is
specifically excluded from application to this Agreement.
15.1.1 If Customer's principal place of business is in North America, all
disputes arising under this Agreement shall be brought exclusively in Superior
Court of the State of California in Santa Xxxxx County or the U.S. District
Court for the Northern District of California in San Francisco, California, as
permitted by law. Customer consents to the personal jurisdiction of the above
courts.
15.1.2 If Customer's principal place of business is outside North America,
all disputes arising under this Agreement shall be finally settled under the
Rules of Arbitration of the International Chamber of Commerce (ICC) by three
arbitrators. Each party shall appoint one neutral arbitrator. The two
arbitrators so appointed shall appoint the presiding arbitrator, who also shall
be neutral, from a roster of arbitrators familiar with intellectual property
disputes. If the two arbitrators to be appointed by the parties fail to agree
upon a third arbitrator within fourteen (14) days of the appointment of the
second arbitrator, the third arbitrator shall be appointed by the ICC from a
roster of arbitrators familiar with intellectual property disputes. The
arbitration procedure shall be conducted in the English language. Unless
otherwise directed by the Arbitrators, the parties are limited to a single
discovery request and response and may notice no more than five (5) depositions
per party. Hearings shall be scheduled not later than sixty (60) days after
receipt of the complainant and respondent's materials. Any such hearing shall be
concluded, and a final award rendered, within ninety (90) days from the
commencement of the hearing.
15.1.3 The arbitration proceeding set forth in Section 1.2 shall be
conducted in London, United Kingdom, if Customer's principal place of business
is in Europe, the Middle East, or Africa, and in Honolulu, Hawaii, if Customer's
principal place of business is elsewhere outside North America.
15.2 ATTORNEYS' FEES. In the event any proceeding or lawsuit is brought by
Wind River or Customer in connection with this Agreement, the prevailing party
in such proceeding shall be entitled to receive its costs, expert witness fees
and reasonable attorneys' fees, including costs and fees on appeal.
15.3 INJUNCTIVE RELIEF. It is understood and agreed that, notwithstanding
any other provisions of this Agreement, breach of the provisions of this
Agreement by Customer will cause Wind River irreparable damage for which
recovery of money damages would be inadequate, and that Wind River shall
therefore be entitled to obtain timely injunctive relief to protect Wind River's
rights under this Agreement in addition to any and all remedies available at
law.
15.4 NOTICES. All notices or reports permitted or required under this
Agreement shall be in writing and shall be delivered by personal delivery or by
certified or registered mail, return receipt requested, and shall be deemed
given upon personal delivery or five (5) days after deposit in the mail. Notices
shall be sent to the parties at the addresses in Exhibit A or such other address
as either party may designate for itself in writing. If the notice is to Wind
River, a copy shall also be sent to the attention of its Vice President,
Intellectual Property and Legal Affairs at the Wind River address specified in
Exhibit A.
15.5 NO AGENCY. Nothing contained herein shall be construed as creating
any agency, employment relationship, partnership, principal-agent or other form
of joint enterprise between the parties.
15.6 FORCE MAJEURE. Neither party shall be liable hereunder by reason of
any failure or delay in the performance of its obligations hereunder (except for
the payment of money) on account of strikes, shortages, riots, insurrection,
fires, flood, storm, explosions, acts of God, war, governmental action, labor
conditions, earthquakes, material shortages or any other cause which is beyond
the reasonable control of such party.
9
15.7 WAIVER. The failure of either party to require performance by the
other party of any provision hereof shall not affect the full right to require
such performance at any time thereafter; nor shall the waiver by either party of
a breach of any provision hereof be taken or held to be a waiver of the
provision itself.
15.8 SEVERABILITY. In the event that any provision of this Agreement shall
be unenforceable or invalid under any applicable law or be so held by applicable
court decision, such unenforceability or invalidity shall not render this
Agreement unenforceable or invalid as a whole, and, in such event, such
provision shall be changed and interpreted so as to best accomplish the
objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.
15.9 USE OF CUSTOMER'S NAME. Wind River may use Customer's name and may
disclose that Customer is a licensee of Wind River products or services in Wind
River advertising, press, promotion and similar public disclosures with respect
to the Software and professional services; provided, however, that such
advertising, promotions or similar public disclosures shall not indicate that
Customer in any way endorses any Wind River products, without prior written
permission from Customer. Customer agrees that, upon Customer's public
announcement of product designed with or containing Wind River products or
services, Wind River may publicly disclose the nature of the Wind River
involvement in said product.
15.10 HEADINGS. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit, construe,
or describe the scope or extent of such section or in any way affect this
Agreement.
15.11 GOVERNMENT END USERS. The Software is a "commercial item" as that
term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software"
and "commercial computer software documentation" as such terms are used in 48
C.F.R.12.212. Consistent with 48 C.F.R.12.212 and 48 C.F.R. 227.7202-1 through
227.7202-4, Customer will provide the Software to U.S. Government End Users only
pursuant to the terms and conditions therein.
15.12 ASSIGNMENT. Customer may not delegate, assign or transfer this
Agreement, the license(s) granted or any of Customer's rights or duties
hereunder, inducting by way of merger (regardless of whether Customer is the
surviving entity) or acquisition, and any attempt to do so, without Wind River's
express prior written consent, shall be void. Wind River may assign this
Agreement, and its rights and obligations hereunder, in its sole discretion.
15.13 COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which will be considered an original, but all of
which together will constitute one and the same instrument.
15.14 EXPORT CONTROL. All Software and technical information delivered
under this Agreement are subject to U.S. export control laws and may be subject
to export or import regulations in other countries. Customer agrees to strictly
comply with all such laws and regulations. For technology and Software
classified under Export License Exception TSR, Customer agrees not to export or
reexport to any country for which a license is required by the U.S. government
without first obtaining such a license. Customer also agrees that this
assurance will be honored even after the expiration date of this Agreement. For
additional information, please refer to Section 740.6 of the Export
Administration Regulations:
xxxx://x0.xxxxxx.xxx.xxx/xxx/xxx/xxx/000.xxx.
15.15 LANGUAGE. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions of this
Agreement in any other language shall be for accommodation only and shall not be
binding on the parties to this Agreement. All communications and notices made or
given pursuant to this Agreement, and all documentation and support to be
provided, unless otherwise noted, shall be in the English language.
15.16 ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the
entire agreement between Customer and Wind River and supersedes in their
entirety any and all oral or written agreements previously existing between
Customer and Wind River with respect to the subject matter hereof. Except as
provided in
10
Exhibit A, the terms and conditions of any purchase order or other instrument
issued by Customer in connection with this Agreement shall be of no force or
effect. This Agreement may only be amended or supplemented by a writing that
refers explicitly to this Agreement and that is signed by duty authorized
representatives of Customer and Wind River.
11
IN WITNESS WHEREOF, the parties' authorized representatives have executed
this Agreement as of the Effective Date.
WIND RIVER SYSTEMS, INC. LSI LOGIC
By: [Illegible] By: /s/ XXX XXXXXXXXXXXX
--------------------------------------------- ---------------------------------------------
Name: Name: Xxx Xxxxxxxxxxxx
--------------------------------------------- ---------------------------------------------
Title: Title: Mgr. Eng. Process Mgmt.
--------------------------------------------- ---------------------------------------------
Date: 10/28/03 Date: 10/28/03
--------------------------------------------- ---------------------------------------------
12
EXHIBIT A-1
WIND RIVER SYSTEMS, INC.
ENTERPRISE LICENSE AGREEMENT
The parties acknowledge and agree that once Customer has executed this
Agreement for designated Software, Customer shall not be required to execute an
additional agreement with Wind River if Customer wishes to obtain rights to
additional Development Licenses or rights to distribute additional Run-Time
Modules for the same Software. At Customer's option, Customer may issue a form
Purchase Order in lieu of executing an additional agreement provided that (i)
any additional Development Licenses or Run-Time Modules are for the same
Software, (ii) Customer provides the required information on this Exhibit A-1 in
any such Purchase Order, and (iii) the terms and conditions on such Purchase
Order shall have no effect.
SUBSCRIPTION LICENSE TERM: One 1 Year
The first Contract Year will commence on the Effective Date and shall
terminate one year thereafter.
Wind River Software: VxWorks Developer's Toolkit 2.2.1
Development License Fee Schedule:
LINE PRODUCT PRICE QUANTITY/ EXTENDED
# PRODUCT DESCRIPTION NUMBER ATTRIBUTE NET PRICE USERS TOTAL
---- ------------------- ---------- ------------ --------- --------- ----------
1 VxWorks Developer's [*] [*] [*] [*] [*]
Toolkit 2.2.1
Development License
TOTAL [*]
Number of Development Licenses: [*].
Supported Architecture Family/Families per Development License: [*]
Production License Fee Schedule: NO PRODUCTION RIGHTS. Customer shall have no
right to reproduce, manufacture or distribute Run-Time Modules pursuant to
Section 2.2 of the Agreement ("Production License") unless and until Customer
and Wind River have agreed in writing to an applicable fee schedule for such
Run-Time Module production rights.
Authorized Number of Run-Time Module Copies: Not Applicable.
Per Copy Fee Schedule: Not Applicable.
Expected Volume/price band: Not Applicable.
Currency: U.S. Dollar
Platform-Specific Additional Terms: None.
Customer Technical Contact (name, telephone, e-mail and fax number): [*]
Customer Licensing/Commercial Contact (name, telephone, e-mail and fax number):
[*]
Development Location(s):
- 0000 Xxxxx Xxxx Xxxx, Xxxxxxx, XX 00000
Additional Terms: None.
12
LICENSE REPORT
Customer Name: LSI Logic Storage System, Inc.
License Agreement Number: Not yet provided by Wind River Systems
License Agreement Date: Not yet established
Reporting Period: October 28, 2003
PRODUCT
PROJECT NAME NAME OR
PERIOD OR DESCRIPTION DESCRIPTION PRODUCTION UNITS PER UNIT FEE TOTAL
------ -------------- -------------- ---------------- ------------ -----
Not Established [*] Not Defined 0 N/A N/A
Total Production
Note: Reference Exhibit A-1: NO PRODUCTION RIGHTS. Customer shall have no right
to reproduce, manufacture or distribute Run-Time Modules pursuant to Section 2.2
of the Agreement ("Production License") unless and until Customer and Wind River
have agreed in writing to an applicable fee schedule for such Run-Time Module
production rights.
Number of Development Licenses: [*].
Quarterly Flexbill Report: N/A
Development Locations:
0000 X. Xxxx Xxxx, Xxxxxxx, XX 00000
000 Xxxxx Xxx, 0xx Xxxxx, Xxxxxxx, XX 00000
0000 Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxx, XX 00000
Supported Architecture Family/Families: [*]
Balance Due Wind River Systems, Inc.: [*]
Check or Remittance Number: N/A
Authorized Representative: [*]
Title: Manager, Engineering Process Management
Date: October 18, 2003
13
IN WITNESS WHEREOF, the parties hereto have caused this Exhibit to be
executed by their duly authorized representatives.
AGREED TO:
WIND RIVER SYSTEMS, INC.
By: /s/ Xxxxxxx Xxxx -------------------------------------------------
Name: Xxxxxxx Xxxx ----------------------------------------------
Title: Manager Sales Operations -----------------------------------------------
Date: 10/28/03 -----------------------------------------------
LSI LOGIC
By: /s/ Xxx Xxxxxxxxxxxx -------------------------------------------------
Name: Xxx Xxxxxxxxxxxx ----------------------------------------------
Title: Mgr. Engineering Process Mgmt.
-----------------------------------------------
Date: 10/28/03 -----------------------------------------------
14
AMENDMENT NO.1
TO THE
ENTERPRISE LICENSE AGREEMENT
BETWEEN WIND RIVER SYSTEMS, INC. AND LSI LOGIC
This Amendment No. 1 (the "Amendment") effective as of the date last signed
by the parties below (the "Effective Date") amends the
Enterprise License
Agreement between Wind River Systems, Inc. and LSI Logic dated October 28, 2003
(the "Agreement"). Capitalized terms not otherwise defined herein shall have the
meaning set forth in the Agreement. Unless specifically modified by this
Amendment, all terms and conditions of the Agreement remain in full force and
effect. In the event of a conflict between this Amendment and the Agreement, the
terms and conditions of this Amendment shall prevail. The parties hereby agree
as follows:
1. The first sentence of Section 1.3 of the Agreement shall be deleted and
replaced with the following:
"DEVELOPMENT LICENSE" means the right of either a Floating User or Unique
User to use certain Software pursuant to the terms and conditions of this
Agreement, as set forth in an Exhibit A.
2. The following shall be added to the end of Section 1.20 of the
Agreement:
"A User may be either a Unique User or a Floating User."
3. The following shall be added as a new Section 1.21:
"FLOATING USER" means any User who may access and use the Software
pursuant to a Floating User Development License.
4. The following shall be added as a new Section 1.22:
"UNIQUE USER" means an individual User who uses the Software pursuant
to a Unique User Development License. For clarification, Customer will use
reporting technology provided by Wind River to determine the total number
of Unique Users who used the Software in a contract quarter.
5. Section 2.1 of the Agreement ("Development License") shall be deleted in
its entirety and replaced with the following:
"2.1.1 UNIQUE USER DEVELOPMENT LICENSE. Subject to Customer's
compliance with the terms and conditions of this Agreement and any Exhibit
and payment of any applicable annual fees, Wind River hereby grants to
Customer, only during the Subscription License Term, a restricted,
personal, non-transferable, non-exclusive, internal-use license: (i) for
any individual User to reproduce and use one (1) copy of the Software for
each Supported Architecture Family per Development License licensed for
such Software under Exhibit A; (ii) to reproduce a reasonable number of
copies of the Run-Time Module for each Development License, solely in
Object Code, for internal testing and development purposes by Customer,
(iii) to reproduce the Software for archive purposes, consistent with
Customer's standard archive procedures; (iv) to modify the Software Source
Code, solely to the extent necessary to support the development of a Target
Application; and (v) to compile the Software Source Code, including any
modifications thereof, into Object Code.
2.1.2 FLOATING USER DEVELOPMENT LICENSE. Subject to Customer's
compliance with the terms and conditions of the Agreement and any Exhibit
and payment of any applicable annual fees, Wind River hereby grants to
Customer, only during the Subscription License Term, a restricted,
personal, non-transferable, non-exclusive, internal-use license: (i) to
reproduce and use one (1) copy of the Software for each Supported
Architecture Family per Development License, solely for the number of
licensed concurrent Floating Users located at each Development Location and
specified as licensed for such Software in Exhibit A; (ii) to reproduce a
reasonable number of copies of the Run-Time Module for each Floating User
Development License, solely in Object Code, for internal testing and
development purposes by Customer; (iii) to reproduce the Software for
archive purposes, consistent with Customer's standard archive procedures;
(iv) to modify the Software Source Code, solely to the extent necessary to
support the development of a Target Application and to properly interface
with the Run-Time Module; and (v) to compile the Software Source Code,
including any modifications thereof, into Object Code."
15
6. Section 3.1 of the Agreement ("General") shall be deleted in its
entirety and replaced with the following:
"3.1 GENERAL. Except as expressly permitted by this Agreement,
Customer may not: (i) permit concurrent use of a sine copy of the Software
for any Unique User Development License, or use by anyone other than the
unique individual User assigned to each Unique User Development License;
(i) modify the Operating System or Tools; (iii) translate, reverse
engineer, decompile, disassemble (except to the extent applicable laws
specifically prohibit such restriction) or attempt to derive the Source
Code of Software provided to Customer in Object Code, or create derivative
works of the Operating System or Tools or let any third party do any of the
foregoing; (iv) reproduce the Operating System, Tools, or Source Code other
than as specified above; (v) sublicense, rent, lease, loan, timeshare,
sell, distribute, disclose, publish, assign or transfer any rights, grant a
security interest in, transfer possession of the Software or electronically
transfer the Software from one computer to another over a network other
than Customers internal network as permitted under this Agreement; (vi)
transfer any Floating User Development License from a Development Location
to a location in a different county, or (vii) alter or remove any of Wind
River's or its licensors' copyright or proprietary rights notices or
legends appearing on or in the Software. Customer shall reproduce such
notices on any copies of the Software Customer is permitted to make.
Customer is responsible for informing all Users of the restrictions set
forth in this Agreement with respect to use of the Software."
7. Section 3.3 of the Agreement shall be deleted in its entirety and
replaced with the following:
"3.3 TRANSFER OF USERS. A Development License may be transferred from
one Unique User to another Unique User within a Contract Year under the
following conditions: (i) unconditionally, at the end of the Contract Year
Quarter; (ii) during a Contract Year Quarter if a Unique User leaves the
company and is replaced by another Unique User; has a name change due to a
change in marital status, or has a network UserID change due to IT
configuration changes; or (iii) during a Contract Year in the event a
Unique User is reassigned from a current project and replaced by another
developer."
8. In the third sentence of Section 9.3, subsection (iv) shall be deleted
and replaced with the following:
"(iv) usage reports generated through the license management
technology in the Software for the reporting of Unique User Development
Licenses; ..."
9. Exhibit A-2 attached to this Amendment is hereby incorporated into the
Agreement by reference.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the later date indicated below by their respective duly
authorized representatives.
WIND RIVER SYSTEMS, INC.
By: /s/ Xxxxxxx [Illegible]
----------------------------------
Name: Xxxxxxx [Illegible]
--------------------------------
Title: Inside Sales Supervisor
-------------------------------
Date: 12/29/03
---------------------------------
LSI LOGIC
By: /s/ Xxx Xxxxxxxxxxxx
----------------------------------
Name: Xxx Xxxxxxxxxxxx
--------------------------------
Title: Mgr. Engineering Process Mgmt.
-------------------------------
Date: 12/19/03
---------------------------------
16
EXHIBIT A-2
TO THE
ENTERPRISE LICENSE AGREEMENT
This Exhibit A-2 is entered into as of the date last signed by the parties
below (the "Effective Date") and attaches to the
Enterprise License Agreement
entered into by and between Wind River Systems, Inc. ("Wind River") and LSI
Logic ("Customer") on October 28, 2003. The terms of this Exhibit A-2 are hereby
incorporated into the Agreement by reference.
The parties acknowledge and agree that once Customer has executed this
Agreement for designated Software, Customer shall not be required to execute an
additional agreement with Wind River if Customer wishes to obtain rights to
additional Development Licenses or rights to distribute additional Run-Time
Modules for the same Software. At Customer's option, Customer may issue a form
Purchase Order in lieu of executing an additional agreement provided that (i)
any additional Development Licenses or Run-Time Modules are for the same
Software, (ii) Customer provides the required information on this Exhibit A in
any such Purchase Order, and (iii) the terms and conditions on such Purchase
Order shall have no effect.
SUBSCRIPTION LICENSE TERM: One (1) year commencing January 1, 2004 and ending
December 31, 2004.
DEVELOPMENT LICENSE FEE SCHEDULE:
QUANTITY/
LINE # PRODUCT DESCRIPTION PRODUCT NUMBER PRICE ATTRIBUTE NET PRICE USERS EXTENDED TOTAL
------ ---------------------------------- -------------- --------------- --------- --------- --------------
1 VxWorks Developer's Toolkit 2.2.1 [*] [*] [*] [*] [*]
Floating User Development Licenses
transitioned from Unique User
Development Licenses granted under
Exhibit A-1*
2 WxWorks Developer's Toolkit 2.2.1 [*] [*] [*] [*] [*]
Floating User Development Licenses
TOTAL
---------------
* ADDITIONAL TERMS -- TERMINATION PREVIOUS UNIQUE USER DEVELOPMENT LICENSES
AND UPGRADE TO FLOATING USER DEVELOPMENT LICENSES: The parties acknowledge
and agree that the Unique User Development Licenses previously granted
under Exhibit A-1 will terminate on December 31, 2003 and will be replaced
with the Floating User Development Licenses detailed in Section 1 of the
above table.
RENEWAL PRICING OPTION: In the event Customer wishes to renew the Development
Licenses granted under this Exhibit A-2 for additional Contract Years, the
pricing shall be as follows:
Contract Year 2: [*]
Contract Year 3 and forward: [*]
NO PRODUCTION RIGHTS: Customer shall have no right to reproduce, manufacture or
distribute Run-Time Modules pursuant, to Section 2.2 of the Agreement
("Production License") unless and until Customer and Wind River have agreed in
writing to an applicable fee schedule for such Run-Time Module production
rights.
17
IN WITNESS WHEREOF, the parties hereto have caused this Exhibit to be
executed by their duly authorized representatives.
AGREED TO:
WIND RIVER SYSTEMS, INC. LSI LOGIC
By: /s/ Xxx Xxxxxxxxxxxx
By: /s/ Xxxxxxx [Illegible] --------------------------------------------
------------------------------------------
Name: Xxx Xxxxxxxxxxxx
Name: Xxxxxxx [Illegible] --------------------------------------------
------------------------------------------
Title: Mgr. Engineering Process Mgmt.
Title: Inside Sales Supervisor --------------------------------------------
------------------------------------------
Date: 12/19/03
Date: 12/23/03 --------------------------------------------
------------------------------------------
18
EXHIBIT A-3
TO THE
ENTERPRISE LICENSE AGREEMENT
This Exhibit A-3 is entered into as of the date last signed by the parties
below (the "Effective Date") and attaches to the
Enterprise License Agreement
entered into by and between Wind River Systems, Inc. ("Wind River) and LSI Logic
("Customer") on October 28, 2003 as amended by Amendment No. 1 dated .
The terms of this Exhibit A-3 are hereby incorporated into the Agreement by
reference.
The parties acknowledge and agree that once Customer has executed this
Agreement for designated Software, Customer shall not be required to execute an
additional agreement with Wind River if Customer wishes to obtain rights to
additional Development Licenses or rights to distribute additional Run-Time
Modules for the same Software. At Customer's option, Customer may issue a form
Purchase Order in lieu of executing an additional agreement provided that (i)
any additional Development Licenses or Run-Time Modules are for the same
Software, (ii) Customer provides the required information on this Exhibit A in
any such Purchase Order, and (iii) the terms and conditions on such Purchase
Order shall have no effect.
PRODUCTION LICENSE FEES:
For the Subscription License Term, Customer shall have the right to
reproduce, manufacture or distribute Run-Time Modules pursuant to Section 2.2 of
the Agreement ("Production License") for the products licensed under Exhibit A-2
for a fee of [*].
Production License Fees shall be due quarterly in-arrears. A production
license report and full payment is due within [*]of the end of each quarter.
IN WITNESS WHEREOF, the parties hereto have caused this Exhibit to be
executed by their duly authorized representatives.
AGREED TO:
WIND RIVER SYSTEMS, INC. LSI LOGIC
By: /s/ Xxx Xxxxxxxxxxxx
By: /s/ Xxxxxxx [Illegible] --------------------------------------------
------------------------------------------
Name: Xxx Xxxxxxxxxxxx
Name: Xxxxxxx [Illegible] --------------------------------------------
------------------------------------------
Title: Mgr. Engineering Process Mgmt.
Title: Inside Sales Supervisor --------------------------------------------
------------------------------------------
Date: 12/19/03
Date: 12/23/03 --------------------------------------------
------------------------------------------
19
AMENDMENT NO. 2 TO THE
ENTERPRISE LICENSE AGREEMENT
BETWEEN WIND RIVER SYSTEMS, INC. AND
LSI STORAGE SYSTEMS, INC.
This Amendment No. 2 (the "Amendment") effective as of the date last signed
by the parties below amends the Enterprise License Agreement between Wind River
Systems, Inc. and LSI Logic dated October 28, 2003, as amended on December 29,
2003 (the "Agreement"). Capitalized terms not otherwise defined in this
Amendment have the meanings set forth in the Agreement. Unless specifically
modified by this Amendment, all terms and conditions of the Agreement remain in
full force and effect. In the event of a conflict between this Amendment and
this Agreement, the terms and conditions of this Amendment will prevail. The
parties agree as follows:
The correct Customer name, state of incorporation, and corporate address
are as follows:
LSI Logic Storage Systems, Inc., a Delaware corporation, having a principal
place of business located at 0000 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx 00000.
Agreed to:
WIND RIVER SYSTEMS, INC LSI LOGIC STORAGE SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXXX
---------------------------------------- ----------------------------------------
Name: Xxxxx X. XxXxxx Name: Xxxxx X. Xxxxxxx
------------------------------------- -------------------------------------
Title: Director, Contracts & Licensing Title: V.P. General Counsel
-------------------------------------- --------------------------------------
Date: May 6, 2004 Date: May 6, 2004
-------------------------------------- --------------------------------------
