EXHIBIT 10.37
MASTER ORIGINAL EQUIPMENT MANUFACTURER (OEM)
SOFTWARE LICENSE AGREEMENT
BETWEEN
INTEL CORPORATION
AND
AWARD SOFTWARE INTERNATIONAL, INC.
AGREEMENT NUMBER [*]
----------
SEPTEMBER 10 , 1997
[*] = 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.
PAGE 1 OF 27
TABLE OF CONTENTS
SECTION PAGE
------- ----
1 - DEFINITIONS 3
2 - DELIVERABLES 6
3 - COPYRIGHT LICENSES AND RESTRICTIONS 6
4 - RESERVATION OF RIGHTS AND OPERATIONAL REQUIREMENTS 7
5 - OWNERSHIP AND OEM CERTIFICATION 8
6 INTEL ATTRIBUTION 9
7 - ROYALTY 10
8 - REPORTS AND PAYMENTS FOR LICENSED SOFTWARE 11
9 - TRAINING AND SUPPORT 12
10 - MARKETING 12
11 - TERM AND TERMINATION 12
12 - ADDITIONAL TERMS 13
EXHIBITS
--------
A - LICENSED SOFTWARE, ROYALTY AND AUTHORIZED TERRITORY
B - BRANDING/INTEL ATTRIBUTION GUIDELINES
C - LICENSEE AND INTEL SUPPORT
D- CORPORATE NON-DISCLOSURE AGREEMENT NUMBER
E - MARKETING COMMITMENTS
F - ADMINISTRATOR CONSOLE SOFTWARE
PAGE 2 OF 27
MASTER ORIGINAL EQUIPMENT MANUFACTURER (OEM)
SOFTWARE LICENSE AGREEMENT
This Agreement ("Agreement") is made by and between Award Software
--------------
International, Inc., 000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, XX 00000
--------------------------------------------------------------------------
("Award") and Intel Corporation, having offices at 0000 Xxxxxxx Xxxxxxx Xxxx.,
Xxxxx Xxxxx, XX 00000 ("Intel"). Licensee and Intel are each individually
referred to herein as a "Party," and collectively as the "Parties." This
Agreement shall become effective on September 10, 1997 ("Effective Date").
-------------------
RECITALS
--------
1. Intel is a developer, manufacturer, and marketer of network manageability
technology and certain network manageability software products.
2. These software products are designed by Intel to operate on certain personal
computers ("PCs") and server systems ("Servers") using microprocessors that
are instruction set compatible with certain Intel architecture
microprocessors.
3. Licensee is a developer, manufacturer, and distributor of BIOS software for
PCs and Server products.
4. Licensee and Intel intend to establish a business relationship in which
Licensee, as a provider of BIOS software and other products and support
services to original equipment manufacturers ("OEM"), may distribute and
sublicense to its oem customers within a defined territory, Intel licensed
software which shall be incorporated in and distributed in OEM customer
products as set forth in this Agreement.
5. To further the above intended business relationship, Intel desires to license
to Licensee and Licensee desires to obtain from Intel specific license rights
to certain copyrighted work, all for the purpose of enabling Licensee to
sublicense and support certain Intel software products which shall be
incorporated in or distributed as an integral part of Licensee's OEM
customers products as set forth in this Agreement.
AGREEMENT
---------
NOW, THEREFORE, in consideration of and conditioned on the Recitals set forth
above and incorporated in this Agreement, the covenants stated herein, and for
other good and valuable consideration, the receipt and sufficiency of which the
Parties hereby acknowledge, the Parties hereby agree as follows:
Section 1
---------
Definitions
In addition to the terms defined above and elsewhere in this Agreement, the
following terms shall have the meaning set forth below:
1.1 "APPLICATION PROGRAMMING INTERFACE(s) OR API(s)" shall mean interfaces by
which the functions of the Licensed Software, can be called.
1.2 "AUTHORIZED TERRITORY" shall mean that geographic area set forth in
Exhibit A within which the Licensee may, pursuant to the terms and
conditions of this Agreement, sublicense the Licensed Software to its OEM
customers which are either incorporated under the laws of, or have a
regular and established place of business in, such geographic area at the
time of entering into an OEM Software License Agreement with Licensee.
this restriction shall not limit where OEM Sublicensee's may market and
sell their respective OEM Sublicensee Products. in the event that it is
unclear if a potential OEM Sublicensee is included in the Authorized
Territory as defined hereunder, Licensee shall make a written request to
Intel to make such determination and Intel shall promptly communicate its
decision to Licensee.
1.2 "BACKUP COPY/COPIES" shall mean a copy/copies of a software program or
related files intended for use exclusively for backup or archive purposes.
Backup Copies specifically exclude the copy of the software
PAGE 3 OF 27
program primarily intended for use in the loading, execution, or display of
software or related files on a computer system.
1.3 "DOCUMENTATION" shall mean Design Documentation and End-User Documentation.
1.3.1 "DESIGN DOCUMENTATION" shall mean any documentation relating to (i)
how the Licensed Software was developed, (ii) how the Licensed
Software works, is organized or is partitioned internally, (iii) how
a Licensee other than an end user can, if granted the right , modify
or add to the Licensed Software functionality, (iv) any non-public
APIs, and/or (v) any confidential and trade secret information of a
technical nature provided to Licensee by Intel under this Agreement.
1.3.2 "END-USER DOCUMENTATION" shall mean any end user installation and
user guides, manuals, and other technical information in printed and
machine-readable form that is normally provided by Intel to end
users of the Licensed Software. End User Documentation specifically
excludes Design Documentation and any documentation related to
source code.
1.4 "DISTRIBUTOR" shall mean a third party, including any OEM Sublicensee or
subsidiary thereof, that receives a limited license or authorization from
Licensee to market and distribute OEM Sublicensee Products. The term
"Distributor" shall include, but not be limited to, resellers, original
equipment manufacturers, value added resellers, dealers, agents, and
subdistributors of OEM Sublicensee Products.
1.5 "End User Object Code Software" means that portion of the Licensed Software
identified in Exhibit A, in object code form, which is licensed hereunder
to be integrated into or shipped with OEM Sublicensee Products to end
users. End User Object Code does not include OEM Utility Software.
1.6 "FIRST CUSTOMER SHIPMENT" or "FCS" shall mean the date of first commercial
shipment of an OEM Sublicensee Product.
1.7 "INTEL ARCHITECTURE" or "IA" shall mean combination 16-32 bit and thirty-
two (32) bit or greater microprocessor architectures and instruction sets
compatible with combination 16-32 bit and thirty-two (32) bit or greater
microprocessors made or sold by Intel now or in the future.
1.8 "LICENSED PARTY" shall mean the Licensee and any authorized OEM Sublicensee
hereunder, both individually and collectively, as indicated by the context.
1.9 "LICENSEE" shall mean Award Software International, Inc. and shall also
include all of Award's wholly owned subsidiaries, provided that Award shall
remain directly and primarily responsible to Intel for all obligations
undertaken by Award in this Agreement, including, but not limited to,
obligations regarding the reporting and payment of royalties for the
Licensed Software, compliance with the license granted hereunder to the
Licensed Software, and the Authorized Territory limitation. Inclusion of
Award's wholly owned subsidiaries shall in no event be deemed to broaden
Intel's obligations hereunder, including, without limitation, the scope of
Intel's indemnity obligation with regard to any claim of copyright
infringement.
1.10 "LICENSED SOFTWARE" shall mean the specific Intel Release of the End User
Object Code Software and the OEM Utility Software, identified by their
respective version numbers in Exhibit A, and any software contained in
Intel Maintenance Updates or new Intel Releases specifically added to this
Agreement as provided in Section 12.19. Licensed Software also includes any
copies thereof in whole or in part.
1.10.1 "INTEL RELEASE" shall mean a major release or point release so
designated by Intel in its sole discretion as a new release. A
major release means a significantly enhanced or revised release of
Licensed Software, as customarily signified in the software
industry by a change in the digit which appears immediately to the
left of the decimal point in the version number. A point release
means a new release of Licensed Software that contains significant
new features and functionality and is customarily signified by the
software industry by a change in the digit that
PAGE 4 OF 27
appears to the right of the decimal point in the version number.
"Intel Release" specifically excludes "Intel Maintenance Updates".
1.10.2 "INTEL MAINTENANCE UPDATES" shall mean changes to fix a bug or
correct an error to an existing release of Licensed Software, made
by or for Intel, in its sole discretion and which is designated by
Intel as an Intel Maintenance Update.
1.10.3 "ROYALTY UNIT" shall mean each individual copy of the End User
Object Code, in whole or in part, distributed, incorporated in, or
packaged with an OEM Sublicensee Integrated PC/Server Product or
OEM Sublicensee Upgrade Product. Royalty Units specifically exclude
copies of End User Object Code as set forth in Section 7.1.1.
1.11 "OBJECT CODE" shall mean software, including all computer programming code,
entirely in binary form, which is directly executable by a computer and
includes those, help, message, overlay, and other files necessary for
supporting the intended use of the executable code.
1.12 "OEM SUBLICENSEE PRODUCTS" shall mean OEM Sublicensee Integrated PC/Server
Products, OEM Sublicensee Upgrade Products and OEM Sublicensee Maintenance
Updates as defined below and described in Exhibit A.
1.12.1 "OEM SUBLICENSEE INTEGRATED PC/SERVER PRODUCTS" shall mean OEM
Sublicensee Intel Architecture ("IA") products which consist of the
Licensed Software integrated into OEM Sublicensee's IA-based PC or
Server products.
1.12.2 "OEM SUBLICENSEE UPGRADE PRODUCTS" shall mean OEM Sublicensee
products which consist of the Licensed Software, either alone or in
combination with other OEM Sublicensee Products which are offered
only to OEM Sublicensee's customers who have previously purchased
OEM Sublicensee's Integrated PC/Servers Products.
1.12.3 "OEM SUBLICENSEE MAINTENANCE UPDATES" shall mean OEM Sublicensee
software products which contain Intel Maintenance Updates and the
Intel Maintenance Updates licensed and distributed as Licensee
Products.
1.13 "OEM SOFTWARE LICENSE AGREEMENT" shall mean that software license agreement
between Licensee and its OEM customer under which Licensee provides an OEM
Sublicense to the Licensed Software pursuant to this Agreement. The OEM
Software License Agreement shall include, without limitation, those
specified rights and obligations set forth in the Agreement noted as
requirements of the OEM Software License Agreement. And such other terms to
which Licensee and OEM Sublicensee agree in writing provided, however, OEM
Software License Agreement shall be no less stringent than this Agreement.
The OEM Software License Agreement shall not allow the OEM Sublicensee to
sublicense or distribute the Licensed Software, or any portion thereof, in
any form, except for the limited right to grant a license for the End User
Object Code Software to end users of OEM Sublicensee Products as elsewhere
set forth herein. Upon request, Intel will provide Licensee with an
example of the form agreement used by Intel to license Intel Software
Products to its other OEM customers, however, Licensee shall be solely
responsible to develop an OEM Software License Agreement for use with its
OEM Sublicensees which fully complies with the requirements of this
Agreement.
1.14 "OEM SUBLICENSE" shall mean any authorized sublicense hereunder, granted by
Licensee to a Licensee OEM customer for the Licensed Software under a
Licensee OEM Software License Agreement with terms no less stringent, nor
any more expansive, than this Agreement.
1.15 "OEM SUBLICENSEE" shall mean a third party OEM who is granted an OEM
Sublicense, directly or indirectly, by Licensee.
1.16 "OEM UTILITY SOFTWARE" shall mean that software and related materials
(including, without limitation, Design Documentation) which is identified
in Exhibit A and provided and licensed by Intel hereunder for Licensee's
and OEM Sublicensees internal use for support of OEM Sublicensees and their
respective end users.
PAGE 5 OF 27
Section 2
---------
Deliverables
------------
2.1 Intel shall deliver the Licensed Software in accordance with the Milestones
in Exhibit A.
2.2 During the term of this Agreement, Intel Maintenance Updates may be added
to this Agreement at the sole discretion of Intel. In the event Intel
chooses to add such Intel Maintenance Updates, Intel will provide Licensee
with written notice of such addition and provide such Intel Maintenance
Updates upon their commercial availability. Furthermore, new Intel
Releases may be added by written agreement in accordance with Section
12.19.
2.3 Notwithstanding any other provision of this Agreement:
a. Except for any example interface or other such source code which may be
contained in the OEM Utility Software provided hereunder for Licensee's
and OEM Sublicensees internal use only, Licensee shall not be entitled
to access or receive any source code from Intel under this Agreement.
b. Licensee shall not be entitled to access or receive any Intel Release
which is not covered under this Agreement or a mutually agreeable
written amendment that includes price and other terms governing any such
Intel Release.
c. Intel is not required to and will not deliver to Licensee any software
relating to unique features developed by or for Intel solely for a
single customer.
Section 3
---------
Copyright Licenses And Restrictions
3.1 COPYRIGHT LICENSE FOR LICENSED SOFTWARE: Subject to the terms and
conditions of this Agreement, Intel hereby grants to Licensee a
nonexclusive, nontransferable, worldwide, revocable, royalty-bearing
license under Intel copyrights, with the limited right to grant OEM
Sublicenses solely within the Authorized Territory, to publicly display and
perform, copy and distribute the Licensed Software directly to OEM
Sublicensees subject to Licensee's strict compliance with the following:
a. Licensee may have the Licensed Software reproduced solely to supply and
support Licensee's OEM Sublicensees under this Agreement.
b. Licensee shall not reverse engineer, decompile, or disassemble the
Licensed Software Object Code, nor shall Licensee permit or otherwise
allow any OEM Sublicensee to reverse engineer, decompile, or disassemble
the Licensed Software Object Code.
c. Licensee shall require in its OEM Software License Agreement that OEM
Sublicensee's may distribute only the End User Object Code to OEM
Sublicensee's end users either directly or indirectly through OEM
Sublicensee's Distributors in accordance with Section 6 of this
Agreement, and Exhibits B and E, and then only under a license between
OEM Sublicensee and such end users with terms no less stringent, nor
more expansive, than the OEM Sublicensee uses for its own standard end
user Object Code software products. Notwithstanding the foregoing,
distribution of that portion of the End User Object Code Software known
as the Administrator Console Software is subject to the notices
regarding its use and distribution as set forth in Exhibit F.
d. Licensee shall provide each authorized OEM Sublicensee hereunder with
one (1) master "golddisk" copy of the Licensed Software provided by
Intel to Licensee hereunder, and shall only permit OEM Sublicensees to
copy and distribute one copy of the End User Object Code with each OEM
Sublicensee Integrated PC/Server Product unit. Distribution of other
Licensee software on the master goldisk provided to OEM Sublicensees
shall be subject to Intel's prior written approval, which approval shall
not be unreasonably withheld.
PAGE 6 OF 27
e. Nothing in this Agreement authorizes or grants any license to Licensee
to allow any OEM Sublicensee to license and sell End User Object Code
Software on a stand alone basis with the sole exception being if it
constitutes an OEM Sublicensee Maintenance Update. OEM Utility Software
is for Licensee and OEM Sublicensee internal use only and may not be
distributed or licensed in whole or in part by OEM Sublicensees in any
form. Licensee may elect to provide the Licensed Software to its OEM
Sublicensees under an OEM Software License Agreement in conjunction
with Licensee's own software products, but is not required to do so.
Licensee shall not make availability of the Licensed Software to an OEM
Sublicensee subject to the purchase or licensing of Licensee's own
software products.
f. The OEM Software License Agreement between Licensee and the OEM
Sublicensee will require that that the OEM Sublicensee's end user
license:
(i) include prohibitions against reverse engineering, disassembly, or
decompilation of the End User Object Code Software;
(ii) include prohibitions against any licensing or sublicensing from
any such end user to any other party (excluding a transfer of all
of any such end user's license rights); and
(iii) include the following notice:
"U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND
The Software and documentation were developed at private expense
and are provided with "RESTRICTED RIGHTS." Use, duplication, or
disclosure by the Government is subject to restrictions as set
forth in FAR 52.227-14, DFAR 252.227-7013, its successor or
applicable agency rights in technical data or computer software.
In the event that this License, or any part thereof, is deemed
inconsistent with the minimum rights identified in the Restricted
Rights provisions, the minimum rights shall prevail."
g. [*]
3.2 COPYRIGHT LICENSE FOR END USER DOCUMENTATION. Subject to the terms and
conditions of this Agreement, Intel hereby grants to Licensee a
nonexclusive, nontransferable, worldwide, revocable, royalty-free license
under Intel copyrights, with the limited right to grant OEM Sublicenses
solely within the Authorized Territory, to publicly display and perform,
create derivatives (including translation into another language), copy and
distribute the End User Documentation directly to OEM Sublicensees, subject
to Licensee's strict compliance with the following:
a. Licensee may have the End User Documentation reproduced solely to supply
and support OEM Sublicensees under this Agreement;
b. Licensee and/or Licensee's OEM Sublicensees may create derivative works
of the End User Documentation; and
c. Licensee's OEM Sublicensee's may, either directly or through
Distributors, distribute the End User Documentation to end users of OEM
Sublicensee Products, only in accordance with Section 6 and Exhibits B
and E.
Section 4
---------
Reservation of Rights and Operational Requirements
4.1 All rights not expressly granted herein are reserved to the owner, and no
other licenses are granted herein by implication, estoppel or otherwise.
Specifically, (1) nothing in the licenses in Section 3 or otherwise
contained in this Agreement shall either expressly or by implication,
estoppel or otherwise give either party any right to license the other
party's patent rights to others, and (2) no license or immunity is granted
by Intel either directly or by implication, estoppel or otherwise to any
third parties acquiring
[*] = 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.
PAGE 7 OF 27
Licensed Software from either party for the combination of Licensed
Software with other items or for the use of such combination. Furthermore,
notwithstanding anything herein to the contrary, Intel grants no licenses
or other rights under any of its intellectual property rights for technical
information to any microprocessor (including, without limitation, co-
processors and embedded controllers), associated core logic device
(including without limitation chip sets), flash memory or semiconductor
manufacturing technology. Licensee acknowledges that the licenses received
from Intel herein are intended for Licensee to sublicense and provide
support for the Licensed Software to OEM Sublicensees for incorporation in
or packaged with the OEM Sublicensee Products only and that no license is
granted hereunder to design or develop or to assist in designing or
developing any other product including any product for a third party.
4.2 COPYRIGHT PROTECTION: Licensee agrees to reproduce Intel's and its
vendor's copyright notices on each copy of the Licensed Software provided
to OEM Sublicensees and to require OEM Sublicensees to reproduce Intel's
and its vendors' copyright notices on each copy of any OEM Sublicensee
Product and to reproduce Intel's and its vendors' copyright notices on each
copy of any End User Documentation or derivatives thereof distributed by
OEM Sublicensee. Licensee agrees not to remove or obscure and to require
OEM Sublicensee not to remove or obscure any of Intel's or its vendors'
copyright notices or other proprietary notices on the Licensed Software.
4.3 INTEROPERABILITY AND COMPATIBILITY OF OEM SUBLICENSEE PRODUCTS:
Licensee agrees to the following terms and conditions with respect to
Licensee's use of the Licensed Software, and agrees to include such terms
and conditions in each OEM Software License Agreement with OEM Sublicensees
such that they shall also apply to the OEM Sublicensee's use of the
Licensed Software.
4.3.1 Licensee agrees not to alter, obscure, or remove from the Licensed
Software and/or End User Documentation, the primary product user
interface, behavior and graphics to include name, program manager
icon, about box and splash screen, any Intel trademark, brand,
label, other proprietary notice, or marketing device (including but
not limited to free trials and complementary products) included in
the Licensed Software and/or End User Documentation when such
Licensed Software and/or End User Documentation is included in an
OEM Sublicensee Product.
4.3.2 Licensee agrees not to take any actions that would prevent or
interfere with a user of an OEM Sublicensee Product from
communicating with a user of the End User Object Code Software such
that both users can make full use of all capabilities of the End
User Object Code Software.
4.3.3 Licensee agrees not to alter, obscure, block, or otherwise interfere
with any Application Programming Interfaces or features available in
the End User Object Code Software when such End User Object Code
Software is included in an OEM Sublicensee Product.
4.3.4 If Intel in its discretion provides Licensee with an Intel
Maintenance Update or Intel Release under this Agreement under the
same terms and pricing as the previous Licensed Software, Licensee
agrees to ship any such Intel Maintenance Update or Intel Release to
its OEM Sublicensees and to cease shipping, and require that OEM
Sublicensees cease shipping, the previous release of the End User
Object Code Software, within 90 days after delivery by Intel to
Licensee or within a shorter period, if so requested by Intel, to
remedy bugs or errors in the software or to avoid claims for
indemnification.
Section 5
---------
Ownership and OEM Certification
5.1 ACKNOWLEDGMENT OF OWNERSHIP: Licensee acknowledges, as between any
Licensed Party hereunder and Intel, that Intel or Intel's vendors or
development associates have exclusive right, title and interest in and to
all of the intellectual property rights in the Licensed Software made by:
(i) Intel, (ii) its employees, contractors, consultants, or agents; or
(iii) its vendors, or development associates.
5.2 In accordance with the license in Sections 3.1 and 3.2 of this Agreement,
Licensee represents and warrants that it shall require that each OEM
Sublicensee incorporate the End User Object Code Software
PAGE 8 OF 27
and End User Documentation solely as an integral part or component of OEM
Sublicensee Product which such OEM Sublicensee manufactures, licenses, and
sells or leases in the regular course of its business, or will package and
distribute the End User Object Code Software and/or End User Documentation
with the OEM Sublicensee Product. Licensee shall further require in each
OEM Software License Agreement with an OEM Sublicensee that any standalone
distribution of the End User Object Code Software will only be in the form
of OEM Sublicensee Upgrade Products and OEM Sublicensee Maintenance Updates
offered to OEM Sublicensee's installed customer base and no others.
Licensee agrees to promptly notify Intel if the Licensed Software, in whole
or in part, is used in any manner except as expressly authorized hereunder
and to require the same notification requirement of its OEM Sublicensees.
The above restrictions are subject to the audit right in Section 8.
Additionally, the Parties agree that this Section 5.2 of this Agreement was
an essential, material term in establishing the consideration under this
Agreement and that upon any uncured breach hereof in accordance with
Section 11, Intel may terminate this Agreement.
Section 6
---------
Intel Attribution
-----------------
6.1 Marking of Products:
--------------------
(a) When a Licensed party promotes, represents, or otherwise refers to the
capabilities and/or functions of the Licensed Software in Materials, as
defined below, the Licensed party shall include the Intel text attribution
for the Licensed Software (Text Attribution), as set forth in Exhibit B.
Materials include any marketing, advertising, announcements, packaging,
manuals, instruction materials, documentation, presentations, brochures,
catalogs, point of purchase displays and other similar collateral for
Licensee Products.
(b) In addition, each Licensed Party shall be required to use its best
efforts to ensure that the Text Attribution is maintained, as required
herein, in all of its customers' marketing collateral for OEM Sublicensee
Product to the same extent as such Licensed Party is required to maintain
the Text Attribution on OEM Sublicensee Products hereunder.
(c) These Attribution Requirements are in addition to the obligations of
the Licensed Parties set forth in Section 4 of the main body of this
Agreement.
6.2 Inspection of Materials: [*]
------------------------
6.3 Modifications of Text Attribution:
----------------------------------
(a) Intel reserves the right to modify the Text Attribution or add new
Text Attribution or other marking requirements at any time.
(b) Licensee agrees to use commercially reasonable efforts to comply with
such modifications or additions within thirty (30) days after written
notice from Intel to Licensee and to require OEM Sublicensees to do the
same. In the event Licensee or any OEM Sublicensee authorized hereunder is
[*] = 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.
PAGE 9 OF 27
unable to comply with such modifications within the prescribed period,
Licensee shall notify Intel immediately and the Parties shall meet to
discuss an extension of the prescribed period.
6.4 Additional Remedy: [*]
------------------
6.5 No Representation: It is expressly understood that the Text Attribution
------------------
inspection rights held by Intel are for purposes of advising the end user
of the Intel products contained in the OEM Sublicensee Product(s), and do
not in any way indicate Intel's approval, endorsement, or support of the
OEM Sublicensee Product(s). Licensee expressly agrees that Licensee shall
not use, and shall prohibit OEM Sublicensees from using, the Text
Attribution or the Intel name in any way so as to indicate Intel's
approval, endorsement, or support of OEM Sublicensee Products.
6.6 Material Element: The Parties expressly acknowledge that the provisions of
-----------------
this Section governing Text Attribution constitute a material term of this
Agreement.
Section 7
---------
Royalty
7.1 ROYALTY FOR LICENSED SOFTWARE: For each OEM Software License Agreement
entered into between Licensee and an OEM Sublicensee, Licensee shall pay to
Intel the respective volume based royalty specified in Exhibit A for each
Royalty Unit shipped by such OEM Sublicensee.
7.1.1 ROYALTY EXEMPT LICENSED SOFTWARE: Notwithstanding the foregoing, no
royalty will be due Intel for any (A) OEM Sublicensee Maintenance
Updates; (B) Backup copies; and (C) for up to a total of [*] copies
of the Licensed Software made by Licensee and [*] copies of the
Licensed Software made by each OEM Sublicensee for each Intel
Release of the Licensed Software which are: (i) used internally by
OEM Sublicensee for customer support; (ii) used by OEM Sublicensee
for evaluation, demonstration, or marketing purposes to promote the
sale of Royalty Units of the Licensed Software (provided OEM
Sublicensee does not receive any remuneration therefor); or (iii)
used by OEM Sublicensee internally for demonstration or training. In
addition, no royalty will be due Intel for copies of End User Object
Code which are: (i) shipped by OEM Sublicensee as replacement copies
for Royalty Units which were returned as defective; or (ii)
distributed as OEM Sublicensee Maintenance Updates to OEM
Sublicensee's existing customers which were licensed for the
previous release of the End User Object Code.
7.2 MAINTENANCE UPDATES: Licensee shall require in its OEM Software License
Agreements that OEM Sublicensees make commercially reasonable efforts, in
accordance with then current industry practice, to ensure that OEM
Sublicensee Maintenance Updates are licensed (i) only to OEM Sublicensee's
then existing customers for use on their systems which are an OEM
Sublicensee Product and (ii) only in accordance with such other
restrictions as Intel may specify as a condition of the specific Intel
Maintenance Update.
7.3 ROYALTY REVIEWS: During the term of this Agreement, including any
extension thereof as may be agreed upon by the Parties, Intel and Licensee
shall, no more than quarterly, review each OEM Sublicensee's respective
performance under its OEM Software License Agreement with Licensee, and,
if necessary,
[*] = 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.
PAGE 10 OF 27
re-negotiate the royalty amount due Intel for each Royalty Unit under such
Agreement as specified in Exhibit A.
Section 8
---------
Reports and Payments for Licensed Software
8.1 REPORTS: Within [*] days following the end of each calendar month,
Licensee shall furnish to Intel an itemized written statement, in a form
reasonably acceptable to Intel and signed by an authorized employee or
agent of Licensee, showing the number of Royalty Units of Licensed Software
made and distributed, licensed or sold by each OEM Sublicensee having a
current OEM Software License Agreement with Licensee. Such report shall
also include the name of each OEM Sublicensee with its respective annual
volume commitment for distribution of Licensed Software Royalty Units, the
range of serial number labels issued to the respective OEM Sublicensee for
tracking official Royalty Unit copies and the status (balance) of any
prepaid royalties required hereunder for the respective OEM Sublicensee.
If in any reporting period no copies have been made, distributed,
licensed, or sold by an OEM Sublicensee, that fact shall be shown on such
statement, such that each monthly statement reflects the account activity
for each OEM Sublicensee. Such reports shall be sent to the following
address:
Intel Corporation Intel Corporation
Attention: Finance Attention: Post Contract Management
000 X. Xxxx Xxxxxx Xxxxx 0000 XX 00xx Xxx.
Xxxxxxxx Xxxx, Xxxx 00000 Xxxxxxxxx, XX 00000
Mailstop: UT-1 Mailstop: JF3-149
----
8.2 PAYMENTS: Within [*] days following the end of each calendar month,
Licensee shall, irrespective of its own business and accounting methods,
pay to Intel in United States currency the total prepaid royalties due and
payable to Intel as set forth in Exhibit A for each OEM Software License
Agreement entered into between Licensee and an OEM Sublicensee during such
calendar month. In addition, within [*] days following the end of each
calendar quarter ("Quarter"), Licensee shall, irrespective of its own
business and accounting methods, pay to Intel in United States currency the
total royalties due and payable to Intel for such Quarter for each
respective OEM Sublicense Agreement, less any existing credit for prepaid
royalties, if any. The royalty amount due payment to Intel under each such
OEM Software License Agreement shall be determined pursuant to the volume
based royalty amounts set forth in Exhibit A for each Royalty Unit made,
licensed or sold during such calendar quarter by the OEM Sublicensee. For
ease of payment, Licensee may total the royalties due Intel under all OEM
Software License Agreements between Licensee and its OEM Sublicensees and
issue to Intel one total Quarterly payment therefor, however, Licensee
shall not be allowed to aggregate the total number of Royalty Units shipped
under all OEM Software License Agreements for purposes of determining the
relevant royalty amount payable to Intel. Royalties due to Intel pursuant
hereto will be paid by check tendered or wire transfer at the following
addresses:
Remittance Address Wire Transfer Account
------------------ ---------------------
Intel Corporation [*]
[*]
or to such other payment address(es) as Intel shall hereafter designate in
a notice given in accordance with Section 12.13.
8.3 RECORDS: For so long as Licensee is obligated to pay any royalties or
payments under this Agreement, and for a period of [*] years thereafter,
Licensee agrees to keep and maintain complete and accurate records for the
current year and the preceding three years of all data reasonably required
for the verification and computation of the amounts to be paid and the
information to be reported under or relevant to performance of this
Agreement. This shall include, without limitation, copies of all OEM
[*] = 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.
PAGE 11 OF 27
Software License Agreements entered into between Licensee and its OEM
Sublicensees, together with all monthly royalty reports issued thereunder
to Licensee.
8.4 AUDIT RIGHTS: During the term of this Agreement or any renewal thereof,
upon reasonable notice, Intel may request an audit of the Licensee's and
OEM Sublicensees' records and a written certification by a mutually
acceptable independent certified public accountant ("CPA") that the reports
and payments are correct or that the Licensee and OEM Sublicensees are
performing in accordance with this Agreement. In the event that any
Licensed Party hereunder cannot in good faith agree with Intel as to an
auditor within ten (10) days of the date of the audit request, Intel may
select any of the top six CPA firms to conduct the audit. Such auditor
will report to Intel only whether the amounts due or payable to Intel
pursuant to this Agreement were correct, any amount that is due and payable
to Intel, and information related to compliance or non-compliance with this
Agreement. Such auditor will hold such information in confidence and will
not disclose such information to any person or entity other than Intel
without the prior written consent of the Licensed Party. Audits of any
individual Licensed Party hereunder will occur no more frequently than once
in any twelve (12) month period. The cost of such audits will be borne by
the Intel unless a payment discrepancy unfavorable to Intel greater than or
equal to [*] of the amounts owed for any reporting period covered by the
audit is discovered, in which case the Licensee shall pay the entire costs
of the audit, in addition to remitting to Intel any underpayment amounts
discovered. Licensee shall include in its OEM Software License Agreements
with its OEM Sublicensees sufficient rights to permit Intel to exercise the
audit rights reserved by Intel hereunder.
Section 9
---------
Training and Support
9.1 TRAINING AND SUPPORT: Licensee and Intel will provide training and support
for each other as specified in Exhibit C.
9.2 NO ADDITIONAL SUPPORT: Except as expressly set forth in Exhibit C, Intel
shall not have any obligation to provide any support to Licensee under this
Agreement.
Section 10
----------
Marketing
10.1 LICENSEE AND OEM SUBLICENSEE MARKETING COMMITMENTS: Licensee shall
require in its OEM Software License Agreement that each OEM Sublicensee
shall fulfill their respective commitments to market the Licensee Products
as set forth in Exhibit E. Upon reasonable request and notice by Intel,
Licensee and Intel will, prior to the expiration of each calendar year of
this Agreement, perform an account review of each OEM Sublicensee and agree
to a marketing plan which will be negotiated by Licensee with the
respective OEM Sublicensee and attached to its OEM Software License
Agreement as an addendum to Exhibit E for the following calendar year.
Section 11
----------
Term and Termination
11.1 TERM: The term of this Agreement shall be One (1) year beginning on the
Effective Date, which term shall be automatically renewed at the end of
such initial term on the anniversary date of the Effective Date for
additional one (1) year renewal terms, unless terminated by either Party at
any time in writing with a minimum of ninety (90) days prior written
notice.
11.2 TERMINATION: Intel may terminate this Agreement if Licensee fails to pay
for Licensed Software in accordance with the terms of this Agreement, or if
Licensee fails to comply with any material term or condition of this
Agreement, within thirty (30) days of written notice of such failure from
Intel. Additionally, Intel may terminate this Agreement for cause
immediately if Licensee (a) files or has filed against it a petition in
bankruptcy, and Licensee does not continue to pay the royalties set forth
in this Agreement, (b) has a receiver appointed to handle its assets or
affairs, (c) makes or attempts to make an assignment for benefit of
creditors, or (d) undergoes a change of control through an acquisition
which has not received Intel's prior written approval. Licensee may
terminate this Agreement if Intel fails to
[*] = 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.
PAGE 12 OF 27
comply with any material term or condition of this Agreement within thirty
(30) days of written notice of such failure from Licensee. Either party's
rights to terminate are in addition to any other rights that party may
have.
11.3 EFFECT OF TERMINATION OR EXPIRATION: In the event of termination or
expiration of this Agreement, in whole or in part, all licenses granted
hereunder shall terminate and Licensee shall immediately cease any further
sublicensing and distribution of the Licensed Software. Upon such
termination or expiration, Licensee shall immediately proceed to terminate
all OEM Software License Agreements with its OEM Sublicensees, including,
without limitation, providing any required prior written termination notice
to such OEM Sublicensees. During the "wind down" period during which
Licensee is terminating the OEM Software License Agreement with its OEM
Sublicensees, Licensee shall continue its support to the OEM Sublicensees
for the Licensed Software and shall continue to the make all monthly
royalty payments due to Intel hereunder. As of the date of termination or
expiration, any existing licenses granted by OEM Sublicensees to end users
of OEM Sublicensee Products either directly or indirectly through their
respective Distributors shall not be affected by any termination or
expiration of this Agreement or the termination or expiration of the
respective OEM Software License Agreements between Licensee and its OEM
Sublicensees. Upon termination or expiration of this Agreement, all copies
of the Licensed Software and End User Documentation owned by Intel which is
in the possession of the Licensee or its OEM Sublicensees, shall be
promptly returned to Intel at the conclusion of the wind down period, and
each such Licensed Party shall, except as specifically set forth in Section
12.14, cease any and all direct or indirect exercise of license rights
under this Agreement and any OEM Sublicense.
Section 12
----------
Additional Terms
12.1 CONFIDENTIALITY GENERALLY: The existence, terms, and conditions of this
Agreement are confidential and neither party may make any disclosures,
express or implied, regarding this Agreement without the express prior
written consent of the other, with the following exceptions:
a. subject to (b) below, as otherwise may be required by law or legal
process, to legal and financial advisors in their capacity of advising a
party in such matters;
b. if disclosure of this Agreement or any of the terms hereof is required
by applicable law, rule or regulation, or is compelled by a court or
governmental agency, authority or body: (i) the Parties shall use all
legitimate and legal means available to minimize the disclosure to third
parties of the content of the Agreement, including, without limitation,
seeking a confidential treatment request or protective order; (ii) the
disclosing Party shall inform the other party at least ten (10) business
days (i.e., not a Saturday, Sunday or a day on which banks are not open
for business in the geographic area in which the non-disclosing Party's
principal office is located) in advance of the disclosure; and (iii) the
disclosing Party shall provide the other Party with a reasonable and
adequate opportunity to review and comment upon the disclosure, and any
request for confidential treatment or a protective order pertaining
thereto, prior to making such disclosure;
c. in confidence to its legal counsel, accountants, banks and financing
sources and their advisors solely in connection with complying with
financial transactions; or
d. each Party may, under terms of its respective standard nondisclosure
agreement, disclose the existence of this Agreement and the license
rights granted to Licensee hereunder, exclusive of any pricing terms, in
its efforts to market the Licensed Software to potential OEM
Sublicensees.
12.2 CONFIDENTIAL INFORMATION: Disclosures of confidential and proprietary
information by either Party to the other Party shall be governed by the
Intel Corporate Non-disclosure Agreement ("CNDA") number 21565, and
related Confidential Information Transmittal Records ("CITR(s)"). Attached
as Exhibit D is the above referenced CNDA.
12.3 NO WARRANTY. INTEL AND ITS SUPPLIERS MAKE NO WARRANTIES, EITHER EXPRESS OR
IMPLIED, WITH RESPECT TO LICENSED SOFTWARE, END USER DOCUMENTATION, INTEL
MAINTENANCE UPDATES, INTEL RELEASES, AND ANY OTHER MATERIAL PROVIDED UNDER
THIS AGREEMENT. INTEL SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY
PAGE 13 OF 27
AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY.
LICENSED SOFTWARE, END USER DOCUMENTATION, INTEL MAINTENANCE UPDATES, INTEL
RELEASES, AND ANY OTHER MATERIAL PROVIDED UNDER THIS AGREEMENT ARE PROVIDED
AS IS, WITHOUT WARRANTY OF ANY KIND.
12.4 INTEL INDEMNIFICATION: [*]
12.5 LICENSEE INDEMNIFICATION: Licensee agrees to indemnify, and require in its
OEM Software License Agreements that each OEM Sublicensee indemnify, and
hold Intel harmless from and against any and all actions, claims, damages,
expenses (including attorney's fees) and liabilities arising from such
Licensed Party's respective use, modification, distribution and sale of OEM
Sublicensee Products, including but not limited to, suits and claims
brought against Intel by any third parties for the Licensed Party's breach
of warranty to such third party or the Licensed Party's negligence to such
third party. The Licensed Party's respective duties under this Section
extend to any matters arising out of the alleged infringement by OEM
Sublicensee Products of any United States copyright provided that: (i) the
Licensed Party is notified promptly in writing of such claim; (ii) the
Licensed Party controls the defense or settlement of the claim; and (iii)
Intel cooperates reasonably and gives all necessary authority, information
and assistance (at the Licensed Party's expense). Intel will not be liable
for any costs or damages, and the respective Licensed Party will indemnify,
defend and hold Intel harmless from any expenses, damages, costs or losses
resulting from any suit or proceeding based upon a claim arising from: (a)
Intel's compliance with the Licensed Party's designs, specifications or
instructions; (b) modification of the Licensed Software at the Licensed
Party's direction by a party other than Intel after delivery by Intel, (c)
the Licensed Party's use of the Licensed Software or any part thereof
furnished hereunder in combination with any other product; (d) the
Licensed Party's direct or contributory infringement of any process patent
using the Licensed Software furnished hereunder.
12.6 LIMITATION OF LIABILITY. [*]
12.7 CRITICAL CONTROL APPLICATIONS: Intel specifically disclaims liability for
use of the Licensed Software in critical control applications (including,
for example only, safety or health care control systems, nuclear
[*] = 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.
PAGE 14 OF 27
energy control systems, or air or ground traffic control systems) by
Licensee or OEM Sublicensees, and such use is entirely at the user's risk.
12.8 PRODUCT LIABILITY: In the event that Intel is named in a personal injury
or product liability suit arising out of use of the Licensed Software
licensed by a Licensed Party under this Agreement, Licensee agrees to
defend, indemnify, and hold Intel harmless from and against such claims,
and to require in its OEM Software License Agreements that each OEM
Sublicensee defend, indemnify and hold Intel harmless from and against
such claims, which are attributable to (a) Intel's compliance with the
Licensed Party's designs, specifications or instructions, (b) modification
of the Licensed Software at a Licensed Party's direction by a party other
than Intel after delivery by Intel, or (c) the Licensed Party's use of the
Licensed Software, or any part thereof, in combination with any other
product.
12.9 CONFLICTS: In the event of a conflict between this Agreement and any other
document related to the subject matter of this Agreement, or the body of
this Agreement and any of the Exhibits to this Agreement, the terms of
this Agreement, or the body of this Agreement as the case may be, shall
govern.
12.10 PRODUCT AND MANUFACTURING CHANGES: Intel may modify the Licensed Software
specifications or manufacturing processes at any time. Intel will notify
Licensee of such changes when they affect form, fit, or function.
12.11 FORCE MAJEURE: Neither Party will be liable for any failure to perform due
to unforeseen circumstances or causes beyond its reasonable control,
including, but not limited to, acts of God, war, riot, embargoes, acts of
civil or military authorities, delay in delivery by vendors, fire, flood,
accident, strikes, inability to secure transportation, facilities, fuel,
energy, labor, or materials. In the event of a force majeure event, time
for delivery or other performance will be extended for a period equal to
the duration of the delay caused thereby.
12.12 EXPORT: Neither party shall export or permit to be exported, either
directly or indirectly, any Licensed Software or OEM Sublicensee Products
without first obtaining any required license or other approval from the U.
S. Department of Commerce or any other agency or department of the United
States Government. In the event any Licensed Software or OEM Sublicensee
Products are exported from the United States or re-exported from a foreign
destination by either Intel or a Licensed Party, such party shall ensure
that the distribution and export/re-export of the Licensed Software or
Licensee Products is in compliance with all laws, regulations, orders, or
other restrictions of the U.S. Export Administration Regulations. Licensee
agrees that neither it nor any of its OEM Sublicensees will export/re-
export any technical data, process, Licensed Software, OEM Sublicensee
Products or service, directly or indirectly, to any country for which the
United States government or any agency thereof requires an export license,
other governmental approval, or letter of assurance, without first
obtaining such license, approval or letter.
12.13 NOTICES: Any notice required or permitted to be given under this Agreement
shall be effective if it is in writing and sent by certified or registered
mail, return receipt requested, to the appropriate Party hereto at the
address set forth below and appropriate postage affixed. Either Party may
change its address for receipt of notice by notice to the other Party in
accordance with this Section. Notices shall be deemed given on the date of
mailing and the date of notice shall be the date of mailing.
If to Licensee: Award Software International, Inc.
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Attn: [*]
With a copy to: Award Software International, Inc.
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Attn: [*]
If to Intel: Intel Corporation
[*] = 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.
PAGE 15 OF 27
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: [*]
With a copy to: Intel Corporation
0000 XX 00xx Xxx
Xxxxxxxxx, XX 00000
[*]
Attn: [*]
12.14 SURVIVAL: All of the provisions in Sections 1, 4, 8 and 12 shall survive
expiration or termination of this Agreement.
12.15 ASSIGNMENT: Licensee may not assign this Agreement or any obligations,
rights, or benefits hereunder without the express written consent of
Intel, which written consent shall not be unreasonably withheld. Intel, at
its sole discretion, may assign this Agreement or any obligations, rights,
or benefits hereunder to any Intel subsidiary without the consent of
Licensee.
12.16 CHANGE OF CONTROL: If a third party acquires control over Licensee during
the term of this Agreement and has not received Intel's prior written
approval, Intel may at its discretion choose to terminate this Agreement.
Licensee shall provide Intel with thirty (30) days prior written notice of
any such change in control.
12.17 RELATIONSHIP BETWEEN THE PARTIES: In all matters relating to this
Agreement, Licensee and Intel shall act as independent contractors. Except
as may be otherwise expressly permitted hereunder, neither Party will
represent that it has any authority to assume or create any obligation,
expressed or implied, on behalf of the other Party, or to represent the
other Party as agent, employee, or in any other capacity. Neither Party
shall have any obligation, expressed or implied, except as expressly set
forth herein.
12.18 INTERPRETATION: This Agreement, including any exhibits, addenda, schedules
and amendments, has been negotiated at arm's length and between persons
sophisticated and knowledgeable in the matters dealt with in this
Agreement. Each Party has been represented by experienced and
knowledgeable legal counsel. Accordingly, any rule of law (including,
without limitation, California Civil Code Section 1654) or legal decision
that would require interpretation of any ambiguities in this Agreement
against the Party that has drafted it is not applicable and is waived.
12.19 ENTIRE AGREEMENT: This Agreement sets forth the entire Agreement between
the Parties and supersedes prior and contemporaneous proposals,
agreements, and representations between them, whether written or oral,
relating to the subject matter contained herein. This Agreement may be
changed only if agreed to in writing and signed by an authorized signatory
of each Party.
12.20 SEVERABILITY: All rights and remedies, whether conferred hereunder, or by
any other instrument or law will be cumulative and may be exercised
singularly or concurrently. The failure of any Party to enforce any of the
provisions hereof shall not be construed to be a waiver of the right of
such Party thereafter to enforce such provisions. The terms and conditions
stated herein are declared to be severable. If any provision or provisions
of this Agreement shall be held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
12.21 COUNTERPARTS: This Agreement may be executed in several counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
12.22 INJUNCTIVE RELIEF: The Parties agree that preliminary injunctive or other
equitable relief will be a necessary and proper remedy in the event of a
breach of this Agreement in violation of either Party's intellectual
property rights. The Parties further agree that in the event such
equitable relief is granted in the United States, they will not object to
courts in other jurisdictions granting provisional remedies enforcing such
U.S. judgments.
[*] = 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.
PAGE 16 OF 27
12.23 TAX: Licensee is responsible for all taxes on transactions between Intel
and Licensee under this Agreement other than taxes based on Intel's
income. All payments shall be made free and clear without deduction for
any and all present and future taxes imposed by any taxing authority. In
the event that Customer is prohibited by law from making such payments
unless such deductions are made or withheld therefrom, then Customer shall
pay such additional amounts as are necessary in order that the net amounts
received by Intel, after such deduction or withholding, equal the amounts
which would have been received if such deduction or withholding had not
occurred. Customer shall promptly furnish Intel with a copy of an official
tax receipt or other appropriate evidence of any taxes imposed on payments
made under this Agreement, including taxes on any additional amounts paid.
In cases other than taxes referred to above, including but not limited to
sales and use taxes, stamp taxes, value added taxes, property taxes and
other taxes or duties imposed by any taxing authority on or with respect
to this Agreement, the costs of such taxes or duties shall be borne by
Customer. In the event that such taxes or duties are legally imposed
initially on Intel or Intel is later assessed by any taxing authority,
then Intel will be promptly reimbursed by Customer for such taxes or
duties plus any interest and penalties suffered by Intel. This clause
shall survive the termination of the Agreement.
12.24 GOVERNING LAW: Any claims arising under or relating to this Agreement
shall be governed by the internal substantive laws of the State of
Delaware or federal courts located in Delaware, without regard to
principles of conflict of laws. Each party hereby agrees to jurisdiction
and venue in the courts of the State of California for all disputes and
litigation arising under or relating to this Agreement.
INTEL CORPORATION LICENSEE
By: ______________________________ By: ____________________________
Printed Name: ____________________ Printed Name: __________________
Title: ___________________________ Title: _________________________
Date: ____________________________ Date: __________________________
PAGE 17 OF 27
EXHIBIT A
LICENSED SOFTWARE DESCRIPTION, MILESTONES, ROYALTY AND AUTHORIZED TERRITORY
1. Description of End User Object Code Software
------------------------------------------------
LANDesk Client Manager software, Version 3.x.
2. Description of OEM Utility Software and related materials
----------------------------------------------------------------
LANDesk Client Manager Software Development Kit for Version 3.x
LANDesk Client Manager Technical Documentation (Internal use developer and tech
notes) for Version 3.x
3. Milestones for Delivery of Licensed Software.
-------------------------------------------------
Delivery Date from Intel: [*]
4. Royalty For Licensed Software
---------------------------------
In consideration for the rights granted under this Agreement and for each OEM
Software License Agreement entered into between Licensee and an OEM Sublicensee,
Licensee shall pay to Intel a per copy royalty for each Royalty Unit of the
Licensed Software made by the respective OEM Sublicensees. The royalties due to
Intel from Licensee for the Licensed Software shall be determined separately
for, and without aggregation of, each OEM Software License Agreement in
accordance with the volume base royalty schedule set forth below. [*]
VOLUME BASED ROYALTY SCHEDULE
[*]
(in thousands of Units)
0 - 50Ku 50 - 100Ku 100 - 250Ku 250 - 500Ku
------------------------------------------------------------------------------
Per unit royalty due to [*] [*] [*] [*]
Intel from Licensee
for each Royalty Unit
shipped by its OEM
Sublicensee
Such royalties will be paid as follows:
For each OEM Sublicense granted by Licensee with a [*] volume [*] greater than
[*] Units, upon execution of the OEM Software License Agreement between Licensee
and the OEM Sublicensee, Licensee agrees to pay to Intel a pre-paid royalty
equal to [*] of the [*] volume of Royalty Units committed by the OEM Sublicensee
in its respective OEM Software License Agreement with Licensee. This pre-paid
royalty shall be tracked by Licensee and applied to the first [*] percent ([*]%)
of Royalty Units distributed by such OEM Sublicensee as set forth above until
fully earned. After the [*] percent ([*]%) pre-paid royalty for the respective
OEM Sublicensee is drawn down to zero based upon actual volume of Royalty Units
made and distributed, licensed or sold by such OEM Sublicensee, Licensee shall
pay to Intel the per copy royalty as set
[*] = 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.
PAGE 18 OF 27
forth in this Agreement for each Royalty Unit made and distributed, licensed or
sold by the respective OEM Sublicensee.
For purposes of tracking authorized Royalty Units of the Licensed Software, upon
execution of the OEM Software License Agreement between Licensee and the OEM
Sublicensee, Licensee agrees to provide the OEM Sublicensee with serialized
labels in an amount sufficient to cover such OEM Sublicensee's [*] volume [*] of
Royalty Units and to require in its respective OEM Software License Agreement
that the OEM Sublicensee affix one label to each Royalty Unit made and
distributed, licensed or sold by the OEM Sublicensee. Licensee shall contact
Intel immediately upon becoming aware of any unauthorized copying and/or
distribution of the Licensed Software and shall take active steps to prevent
such in the same measure as which Licensee takes to prevent unauthorized copying
and/or distribution of its own software products.
Intel and Licensee understand and agree that the volume based royalty rates for
a new release of the Licensed Software beyond the release specified above may be
higher due to increased features and functionality, and that any such royalty
increase will be mutually agreed upon by the parties prior to delivery of a
master copy of any such release to Licensee.
4. Royalty Review
------------------
The royalty set forth in this Exhibit A for each OEM Sublicensee shall be
reviewed by Intel and Licensee during an account review at the end of each
calendar quarter throughout the term of this Agreement and any renewal period
thereof.
At the end of each review period, the Licensed Software royalty due to Intel
from Licensee may be adjusted for the respective OEM Sublicensee based on (i)
the OEM Sublicensee's actual distribution quantities; (ii) the then current
Intel volume based royalty schedule for the Licensed Software; and (iii) good
faith negotiations and mutual agreement between the Parties' authorized
representatives. In the event of a change in the royalty due to the addition of
a new Intel Release, an amendment to this Agreement to such effect will be
executed by mutual written agreement of the parties which will specify the new
royalty for the new Intel Release and the effective date therefor. Until such
agreement and amendment is made by the parties, the then current royalty for the
Licensed Software will remain in effect.
5. Authorized Territory
------------------------
[*]
[*] = 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.
PAGE 19 OF 27
EXHIBIT B
INTEL ATTRIBUTION REQUIREMENTS
1.0 TEXT ATTRIBUTION/GENERAL OVERVIEW:
----------------------------------
1.1 These Attribution Requirements set forth the treatment and use of the
Intel text attribution for the Licensed Software ("Text Attribution"), on OEM
Sublicensee Products, and on marketing, advertising, announcements, packaging,
manuals, instruction materials, documentation, presentations, brochures,
catalogs, point of purchase displays and other similar collateral ("Materials").
Compliance with these Attribution Requirements is solely the responsibility of
the respective Licensed Party hereunder and Licensee shall make compliance
therewith a contractual obligation in its OEM Software License Agreement with
OEM Sublicensees.
1.2 "LANDesk" is a registered trademark of Intel Corporation. Failure of
any Licensed Party to comply with the Attribution Requirements, as set forth
below, or in the main body of this Agreement shall be a material breach of the
Agreement.
2.0 USE OF TEXT ATTRIBUTION:
------------------------
2.1 When a Licensed Party promotes, represents, or otherwise refers to the
capabilities and/or functions of the Licensed Software in Materials, the
Licensed Party shall use the Text Attribution in the manner set forth in Section
3.0 of this Exhibit B. The Licensed Party shall use the Text Attribution only
in conjunction with OEM Sublicensee Product(s). No Licensed Party shall use the
Text Attribution on or in connection with any other products, goods, or
services, and particularly not on novelty items or T-Shirts.
2.2 The Licensed Party shall not use the Text Attribution in a manner that
may cause confusion as to the source or origin of the products or services being
offered.
2.3 The Licensed Party shall correct any deficiencies in its use of the
Text Attribution, and cease and desist from further publication or distribution
of the offending Materials in accordance with Section 6.4 of the Agreement.
2.4 The Licensed Party shall refrain from falsifying or misrepresenting
any reference to the Text Attribution in its Materials.
3.0 TEXT ATTRIBUTION:
-----------------
3.1 A Licensed Party shall refer to the Licensed Software only as "LANDesk
Client Manager software".
3.2 Examples of acceptable ways to use Text Attribution:
(a) "Licensee Product includes the Intel LANDesk Client Manager
software.)
(b) Licensee is building a Server box and includes Intel LANDesk
Server Manager software as an option.
(c) Licensee buys and resells Intel LANDesk Workgroup Manager
software.
3.3 A Licensed Party shall not use the following markings in any way or in
any activities related to its products:
(a) Intel dropped "e" brand logo.
(b) Any alteration of an existing Intel logo.
(c) Intel Technology Inside or other verbiage not referring to Intel
product by definition.
(d) Intel "LAN man" logo.
(e) Changing Intel Look and Feel on software installation CD, Manual,
or splash screens.
PAGE 20 OF 27
EXHIBIT C
LICENSEE AND INTEL SUPPORT
Each Party shall provide the following level of support to the other.
1. RESPONSIBILITIES
----------------
Licensee shall be responsible for supporting its OEM Sublicensees and shall
require in its OEM Software License Agreements with its OEM Sublicensees,
that the OEM Sublicensee is responsible for supporting their respective
customers and Distributors and Distributor's customers ("First and Second
Level Support") and shall clearly communicate to its customers and
Distributors that it is responsible for such support. OEM Sublicensees may
also choose to have their respective Distributors also provide support to
purchasers of their respective OEM Sublicensee Products. In such case, the
OEM Sublicensee will provide back up support and training for such
Distributors. In no event will Intel will Intel be required to provide any
support to OEM Sublicensees or their respective customers and/or
Distributors. If Intel receives calls from OEM Sublicensee's customers,
Distributors or Distributors' customers, it may refer such calls to
Licensee for disposition.
2. TRAINING
--------
Intel will provide [*] days of training to Licensee at no charge at Intel's
factory training facilities in [*]. In the event that Licensee determines
that additional training is required for its needs, Licensee may request an
additional day be added to such training at no additional charge, subject
to Intel's prior written approval of a Licensee proposed training agenda
for the additional day. A fourth day may be added to such training at a
cost of [*] Dollars ($[*]) and submittal by Licensee and approval by Intel
of a Licensee proposed training agenda. Additional on-site training may be
provided upon request by Licensee for a fee of [*] Dollars ($[*] -U.S.
currency) per day plus travel and lodging expenses.
Training will be provided by Intel as set forth in the preceding paragraph
for each major Intel release (see Section 6 below) of the End User Object
Code Software. Additionally, Licensee may request, at no additional
charge, training supplied by Intel's Taiwan-based field OEM sales support
staff. Such training shall be provided at Intel's sole discretion and is
subject to staff availability and Intel's approval of Licensee's proposed
training agenda.
3. TECHNICAL ADMINISTRATION
------------------------
Intel will designate one or more senior members of the support staff
(Technical Marketing Engineers) to be the technical contacts for the
ongoing relationship between the Parties. Licensee will designate up to two
members of its senior support staff to be the Intel counterparts. This
position will be referred to as the "Technical Administrator". The
respective Technical Administrator from each party will act as the primary
liaison for all technical matters between the parties.
4. OEM UTILITY SOFTWARE AND RELATED MATERIALS
------------------------------------------
Intel will provide Licensee with the OEM Utility Software and related
materials set forth in Exhibit A to assist Licensee in its support of its
OEM Sublicensees.
5. ACCESS TO INTEL MAINTENANCE UPDATES
-----------------------------------
If Intel Maintenance Updates are made by Intel, Intel will notify Licensee
and will provide one copy of the Intel Maintenance Update for evaluation.
If the Intel Maintenance Update is to documentation, it may be provided to
Licensee via Intel's BBS, FaxBack, or Internet service.
[*] = 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.
PAGE 21 OF 27
6. INTEL SUPPORT OF SOFTWARE UPDATES, UPGRADES, AND NEW RELEASES:
-------------------------------------------------------------
(a) Intel will provide support to Licensee for Intel point releases (where
Y is point: X.Y) at no additional charge to Licensee.
(b) Intel support and associated charges for Intel major releases (where X
= major: X.Y) will be negotiated by the parties in good faith.
7. ACCESS TO OEM SUBLICENSEE PRODUCTS
----------------------------------
Licensee will acquire and/or otherwise provide access to Intel, at no
charge, to each OEM Sublicensee Product for which Licensee escalates a
support issue to Intel. Intel shall use such OEM Sublicensee Product(s) to
facilitate the testing, reproduction, and resolution of problems which
Licensee has escalated to Intel. Access to such OEM Sublicensee Products
shall be for as long as Intel needs the platforms to assist in resolving
support issues escalated to Intel by Licensee under this Agreement.
8. ESCALATION SCHEDULE AND PROCEDURE
---------------------------------
8.1 All support issues from Licensee will be consolidated by Licensee's
Technical Administrator(s) and then directed to the Intel Technical
Administrator(s). Licensee will be expected to exhaust the support
resources already supplied to them (manuals, release notes, etc.) before
contacting Intel.
Licensee's Technical Administrator will open a call with an Intel Technical
Administrator. An Intel Technical Administrator will be available from
8:30a.m. to 5:30 p.m., Monday through Friday, Taiwan local time, excluding
national holidays. The Intel Technical Administrator will determine
priority and formulate action plans. Action plans may include referral to
Intel's test or development engineering organization as required. If Intel
determines, in its sole discretion, that Licensee support requests are
unreasonable or otherwise not consistent with Licensee's obligations to
support its OEM Sublicensees by first exhausting other available resources,
Intel reserves the right to limit the amount of support time and resources
available hereunder upon prior written notice to Licensee.
9. SUPERSEDED OR "DOWN-REV" VERSIONS
---------------------------------
One-hundred and eighty (180) days after Intel ceases to ship a version of
Licensed Software to any third party, Intel at its sole option may choose
to discontinue support for that version.
10. LICENSED SOFTWARE SUPPORT ROLES AND PROCESSES
---------------------------------------------
The Licensed Software Support Roles and Processes shall be as further
defined in Attachment 1 to this Exhibit C.
PAGE 22 OF 27
Exhibit C - Attachment #1
LICENSED SOFTWARE SUPPORT ROLES AND PROCESSES
PROBLEM REPORTING, TRACKING AND RESOLUTION
The problem reporting, tracking and resolution process is used to facilitate the
two-way communication between Intel and the Licensee. In order to reduce
confusion and encourage efficiency, Intel requires that all communication with
Intel be done via the assigned Intel OEM FAE and TME. The Intel FAE acts as the
primary contact point into Intel for the Licensee. The Intel OEM TME will
manage the tracking, prioritization and resolution process of development
questions and issues between the Licensee and Intel's development staff. The TME
may call upon Intel engineering department personnel to participate in
conversations relating to development issues. In this way, the Intel FAE/TME
team works as a conduit for all information between the Licensee and Intel,
which assists in ensuring a clear and concise information exchange.
Prior to reporting the problem to Intel, the Licensee should ensure that the
problem is consistently reproducible, and be able to provide a detailed
characterization of the problem. The Licensee should then report the problem to
Intel by completing the OEM Problem Report Form and submitting it to the Intel
OEM TME via mail or FAX. Alternatively, the Licensee may use Email to provide
the required information to Intel, but all necessary information must be
included. The Licensee is responsible for assuring that it either owns or has
the legal right to provide any confidential information that may be included as
part of the problem being reported and that it is adequately protected under a
current Corporate Non-Disclosure Agreement and accompanying Confidential
Information Transmittal Form between the Parties. The Intel TME will employ
reasonable efforts to report the problem to Engineering within one business day.
The TME will then verify all the information and that the problem is not in the
development defect tracking database. Once the TME has verified that the problem
is not already in the database and all information is available from the
Licensee, the problem will be entered in the database.
All issues in the database will be tracked by Intel. In the future, a defect
report may be made available to the Licensee on a mutually agreed to periodic
basis. This report will include the current open issues for the current version
of the LANDesk product and OEM-specific issues.
It is imperative that a consistent and agreed upon definition of problem
severity and response is in place for this process. Intel will use the
following definitions for classification of problem severity and response:
SEVERITY DESCRIPTION
====================================================================================================================================
1 The defect causes the system to halt or causes persistent data to be corrupted. The system cannot continue.
RESPONSE: Intel will make reasonable efforts to respond to Licensee within [*] business [*] with an acknowledgment of
the error and will make diligent efforts to respond with a fix or workaround within [*]. If no solution has been found
within this time, Intel will develop an action plan and present it to the Licensee within [*] of the initial
notification of the error.
------------------------------------------------------------------------------------------------------------------------------------
2 The defect prevents major portions of the program from functioning correctly or causes a major component of the system
not to function with other components of the system. These defects cause the program not to be able to continue but do
not cause the system to crash.
RESPONSE: Intel will make diligent effort to provide a response within [*] and a solution within [*]. If no solution
has been found within this time, Intel will develop an action plan and present it to the Licensee within [*] of the
initial notification of the error.
------------------------------------------------------------------------------------------------------------------------------------
3 The defect prevents small portions of the program from functioning correctly. The program could produce incorrect
results, but the errors would not corrupt persistent data.
RESPONSE: Intel will use diligent efforts to provide a solution either as a correction or in a subsequent release of
the product.
------------------------------------------------------------------------------------------------------------------------------------
4 The defect is cosmetic or involves usability issues, which means that the screen or other output may not be drawn
correctly, but the program is still running and producing correct results. For usability issues, the user can
accomplish the defined functionality, but it is
------------------------------------------------------------------------------------------------------------------------------------
[*] = 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.
PAGE 23 OF 27
------------------------------------------------------------------------------------------------------------------------------------
awkward to do so. This could also include some internal functionality which has been omitted in the interface. The
program can continue normally.
RESPONSE: Intel will use diligent efforts to provide a solution either as a correction or in a subsequent release of
the product.
------------------------------------------------------------------------------------------------------------------------------------
It is necessary to delineate between a product deficiency and a product
enhancement. A product deficiency may be related to the product specification,
not its implementation (i.e. product performs according to specification, but
enhancements are desired). Enhancements are assigned different levels of
severity as shown below:
------------------------------------------------------------------------------------------------------
SEVERITY DESCRIPTION
======================================================================================================
5 Enh - High Important to product success.
------------------------------------------------------------------------------------------------------
6 Enh - Med Substantial product improvement.
------------------------------------------------------------------------------------------------------
7 Enh - Low Nice to have, but not critical to product success
------------------------------------------------------------------------------------------------------
This definition of severity levels will ensure that Intel and the Licensee are
using the same terminology and are able to assign the appropriate priority to a
given problem report. Intel will not be obligated to create enhancements for
any reason, except at Intel's sole discretion.
PAGE 24 OF 27
EXHIBIT D
CORPORATE NON-DISCLOSURE AGREEMENT NUMBER [*]
[*]
[*] = 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.
PAGE 25 OF 27
EXHIBIT E
MARKETING COMMITMENTS
1. [*]
2. MARKETING MATERIALS:
--------------------
2.1 [*]
2.2 Licensee shall at all times use, and require that OEM Sublicensee's
use, reasonable efforts during the term of this Agreement to ensure that
such materials completely and accurately represent OEM Sublicensee
Product(s) and comply with the Text Attribution Requirements in Exhibit B
of this Agreement.
3. REGISTERED USER: [*]
-----------------
4. PROGRAMS: The Licensee shall require in its OEM Software License
---------
Agreement with OEM Sublicensees that the OEM Sublicensee shall support the
following promotional programs:
(a) include promotional materials related to Licensee Software, which are
provided by Intel.
(b) participate in joint marketing/linking activities on the Internet; and
(c) promote upgrades or enhancements to OEM Sublicensee's customer
marketing database at mutually agreed marketing costs and business
returns.
5. OTHER COMMITMENTS: In accordance with the requirements set forth in this
------------------
Exhibit E, Section 1 above, the Parties agree that other marketing
commitments may be determined at a later date for inclusion in Licensee's
OEM Software License Agreement with a particular OEM Sublicensee. Such
other marketing commitments shall be determined through good faith
negotiations and mutual agreement between the Parties' authorized
representatives.
[*] = 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.
PAGE 26 OF 27
EXHIBIT F
LANDESK CLIENT MANAGER V3.0, ADMINISTRATOR CONSOLE SOFTWARE
DESCRIPTION AND SUGGESTED DISTRIBUTION GUIDELINES
BACKGROUND: LANDesk Client Manager version 3.x includes a separate peer-to-peer
management console as a tool for medium and large businesses to reduce the cost
of owning networked PCs. This tool is known as Administrator Console Software.
FUNCTIONAL OVERVIEW: The Administrator Console Software installs on any
Windows(R) 95 or Windows NT(R) based PC. When first launched, it discovers PCs
on the network segment via IP and IPX that are running Common Base Agent (CBA),
a basic component of the LANDesk Client Manager V. 3.X local software. These PCs
are registered with a notification monitor that continually runs in the
background of the administrator's PC and receives any alerts (DMI indicators)
generated by the local notification monitor. The Administrator Console Software
can install and communicate with LDCM V3.X software on PCs via IP or IPX over
the network and receive alerts from these PCs.
SECURITY: Three levels of security for remote access exist with LDCM V3.X:
. None--Administrator has no access rights
. Limited--Administrator can only view inventory
. Full--Administrator can transfer files and view/edit inventory
The default level set for each local installation of LDCM is Limited access.
Only the local user can modify the security level. If the local user grants Full
access for the purposes of remote troubleshooting and problem resolution, or for
any other reason, and does not change the access back to None or Limited access,
then any user of a network PC running the Administrator Software Console can
transfer files and reboot the local user's PC. At the time a remote user
transfers a file in or out of the local user's system, or reboots the system, a
message box momentarily displays on the local user's screen, indicating the
remote user name and type of activity. If the local user does not see or
ignores the message box, then the local user will be unaware of what has
happened. In that event, the only way the local user can determine whether a
remote user has accessed the system, is to manually access the remote access log
file (available from the LANDesk Client Manager software menu) to see what
remote activity has occurred on the system.
REDISTRIBUTION:
Following are distribution criteria to minimize the misuse of Administrator
Console Software by local users, IT administrators or MIS support personnel:
. Distribute directly to administrative personnel via CD or floppy disk
media or via password-protected or registered access on world-wide
web and/or BBS site.
. Do NOT pre-install or include the administrative software on each PC.
. Advise local end users of the necessity to ensure that their
respective systems are set at the appropriate level of security at
all times.
Windows(R) and Windows NT(R) are registered trademarks of Microsoft Corporation.
PAGE 27 OF 27
