EXHIBIT 10.7
AGREEMENT NUMBER C______________
SOFTWARE LICENSE AGREEMENT
BETWEEN
ECHELON CORPORATION
0000 XXXXXXX XXXXXX
XXXX XXXX, XXXXXXXXXX 00000
AND
DEVELOPER
_______________________
_______________________
_______________________
Echelon Corporation ("Echelon") enters into this Agreement to license
to Developer ("Developer") certain computer programs described in Exhibit A
attached hereto in accordance with the terms and conditions of this Agreement.
This Agreement consists of this cover page, the attached Terms and
Conditions, and Exhibits A (Executable Files, Development Purpose and
Developer's Product), B (License Fees), C (Royalties), and D (End User License
Restrictions). There are separate sequentially numbered Exhibits A, B and C for
each computer program available from Echelon (e.g., Exhibit X-0, Xxxxxxx X-0,
etc.). Additional Exhibits A, B and C may be added to this Agreement by
execution thereof by both parties. All references in the Terms and Conditions
to Exhibit A, Exhibit B, or Exhibit C include all Exhibit A's, all Exhibit B's,
or all Exhibit C's in effect, as applicable.
Developer has read, understands and agrees to the terms of this
Agreement and the undersigned is duly authorized to sign this Agreement.
ECHELON CORPORATION DEVELOPER
By: _________________________ By:_____________________________
_____________________________ ________________________________
(Print Name) (Print Name)
Title: ______________________ Title: _________________________
Date: ______________________ Date: _________________________
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SOFTWARE LICENSE AGREEMENT
TERMS AND CONDITIONS
1 DEFINITIONS.
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1.1 "Object Code " means the computer program(s) set forth on Exhibit A in
object code form.
1.2 "Documentation" means the documentation accompanying the Object Code.
1.3 "Executable Files" means the executable files set forth on Exhibit A
and the Support Files.
1.4. "Support Files" means the support files set forth on Exhibit A.
1.5 "Utilities" means all other files supplied on the distribution disk(s)
not defined as Object Code or Support Files.
1.6 "Licensed Software" means the Object Code, Support Files, Utilities
and Documentation.
1.7 "Developer's Product" shall have the meaning set forth on Exhibit A.
1.8 "LonTalk(TM) Protocol" means Echelon's protocol for control networks.
1.9 "Development Purpose" shall have the meaning set forth on Exhibit A.
2 LICENSE.
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2.1 Object Code. Echelon hereby grants Developer a nonexclusive,
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nontransferable license to use the Object Code solely for the Development
Purpose, and to use the Documentation, Support Files and Utilities to support
such efforts. Developer may make one (1) copy of the Licensed Software for
backup purposes.
2.2 Executable Files. Echelon further grants Developer a nonexclusive,
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nontransferable, worldwide license to use, reproduce and distribute Executable
Files. Developer may distribute the Executable Files only incorporated into and
as an integral part of Developer's Product. The foregoing license shall be
effective upon execution by Developer and Echelon of Exhibit C, and Exhibit C
may be executed at any time prior to distribution by Developer of Executable
Files.
2.3 Developer's Product. If Developer's Product as defined on Exhibit A
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is a computer program and not a hardware product, then Developer agrees that the
Developer's Product into which the Executable Files are incorporated will
include software supplied by Developer which, by an objective examination of
features and functions, represents a significant enhancement and transformation
of the Licensed Software and results in a product substantially different from
the Licensed Software. Developer further agrees that it will not use any
Licensed Software for the purpose of developing, or incorporate the Licensed
Software into, development systems for developing applications which use the
LonTalk Protocol.
2.4 Breach. Upon Echelon's request, Developer shall furnish to Echelon
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evidence of compliance with the provisions of Section 2.3. Developer
acknowledges and agrees that its compliance with Section 2.3 is within the sole
discretion of Echelon, and that Developer's failure to comply with these
restrictions will enable Echelon to terminate this Agreement with respect to the
Licensed Software for which Developer is not in compliance immediately upon
notice without Developer's opportunity to cure.
2.5 Distributors. Developer may exercise its distribution rights granted
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pursuant to Section 2.2 above through the use of third party distributors,
resellers, dealers and sales representatives (collectively, "Distributors").
Each Distributor authorized by Developer shall agree in writing to be bound by
the provisions of Sections 3, 6, 7 and 8 hereof. Distributors shall have no
right to modify or reproduce (except as necessary to demonstrate the Developer's
Product to potential customers) the Licensed Software.
2.6 Ownership. Developer acknowledges that the Licensed Software is the
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proprietary and confidential information of Echelon or its suppliers and that
Echelon or its suppliers retain all right, title, and interest in and to the
Licensed Software, including without limitation all copyrights and other
proprietary rights.
2.7 Restrictions. Developer agrees not to reverse engineer, reverse
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assemble, decompile, or otherwise attempt to derive source code from the
Licensed Software. Developer may not use, modify, reproduce, sublicense,
distribute or otherwise provide to third parties the Licensed Software, in whole
or in part, other than as permitted under this Agreement. Developer is
permitted to allow third party contractors to use the Licensed Software at
Developer's place of business for the purposes set forth in Section 2.1 above,
provided that: (i) the Licensed Software is
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conspicuously identified as Confidential Information as provided in Section 9 of
this Agreement; and (ii) with respect to the Licensed Software such contractor
is subject to a confidentiality obligation at least as stringent as that set
forth in Section 9 this Agreement. Developer shall have no right to reproduce,
distribute or otherwise provide to third parties the Documentation, except as
provided in the previous sentence.
3 END USER LICENSE RESTRICTIONS.
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The following provisions of this Section 3 apply only if Developer's
Product as defined on Exhibit A is a computer program and not a hardware
product:
(i) Each copy of Developer's Product containing any Executable Files that
is distributed hereunder shall be distributed pursuant to a software license
agreement between Developer and the end user that incorporates the terms and
conditions set forth on Exhibit D. In jurisdictions in which an enforceable
copyright covering the Licensed Software exists, the agreement may be a written
agreement in the package containing such Developer's Product that is fully
visible to the end user and that the end user accepts by opening the package.
In all other jurisdictions, such agreement must be a written agreement signed by
the end user. Developer agrees to use its best efforts to enforce the
obligations of its end user software license agreements and to inform Echelon
immediately of any known breach of such obligations. Echelon may modify the
terms of Exhibit D upon sixty (60) days written notice to Developer. After the
end of such period, such Developer's Product may be distributed only pursuant to
the modified terms.
(ii) Notwithstanding the foregoing paragraph, Developer shall not be
obligated to distribute such Developer's Product pursuant to a software license
agreement as described in the foregoing paragraph for copies of such Developer's
Product that are distributed internally for Developer's internal business
purposes. For each such copy of Developer's Product, Developer agrees to be
bound by the restriction in Sections 1, 2, 4, 5, 6, 10, and 11 of Exhibit D with
respect to the Executable Files included in the Developer's Product.
4 CONSIDERATION.
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4.1 License Fees. In consideration for the license granted pursuant to
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Section 2.1, Developer agrees to pay to Echelon the one-time nonrefundable
license fee(s) set forth on Exhibit B. Upon receipt of Developer's executed
Exhibit B and a purchase order for the Licensed Software, Echelon will invoice
Developer for such fee. Payment of the invoiced amount will be due within
thirty (30) days of the invoice date. Any invoiced amount not paid when due may
bear interest at the rate of one and one-half percent (1 1/2%) per month or, if
less, the maximum amount permitted by applicable law.
4.2 Royalties.
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(a) In consideration for the license granted pursuant to Section 2.2,
Developer agrees to pay to Echelon the royalties set forth on Exhibit C for each
copy of the Executable Files that is distributed by or for Developer according
to the terms of Exhibit C. If Developer's Product incorporating such Executable
Files, as defined on Exhibit A, is a computer program, the royalty shall be due
for each copy distributed and each copy shall be distributed for use only on a
single computer and not for use in a network. If Developer's Product
incorporating such Executable Files, as defined on Exhibit A, is a hardware
product, the royalty shall be due for each copy of such Executable Files
distributed in each hardware product. As used in this Section 4, "distribute"
includes, but is not limited to, distributed internally for business purposes
other than solely for development.
(b) Developer shall pay, within thirty (30) days after the end of
each calendar quarter or part thereof during the term of this Agreement, the
aggregate royalties for all such Developer's Products distributed by Developer
during such quarter. Developer will also submit to Echelon within thirty (30)
days after the end of each calendar quarter or part thereof during the term of
this Agreement, a reasonably detailed report for the quarter for which such
royalties are due, which describes (i) the number of such Developer's Products
distributed by Developer, and (ii) the calculation of the royalties due.
(c) Notwithstanding paragraph (a) above, no royalty will be payable
for limited numbers of such Developer's Product distributed by Developer
internally and to Distributors solely for marketing and sales demonstrations.
In addition, if such Developer's Product as defined on Exhibit A is a computer
program and not a hardware product, no royalties will be payable for limited
copies of Developer's Product distributed solely for the following purposes; (i)
limited copies internally and to Distributors for product maintenance and
support; (ii) as back up copies; (iii) as error corrections that are distributed
generally to third party customers for no fee (or for media and handling charges
only); or (iv) as error corrections that are distributed to internal users,
provided, that such error corrections do not incorporate new features or
functions.
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4.3 Taxes.
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(a) The fees and royalties payable hereunder do not include any
sales, use, excise, value-added, or similar taxes that may be applicable. When
Echelon has the legal obligation to collect such taxes, the appropriate amount
shall be added to Developer's invoice and paid by Developer unless Developer
provides Echelon with a valid tax exemption certificate authorized by the
appropriate taxing authority. Echelon agrees to take such steps as may be
practical to minimize such taxes.
(b) All payments by Developer shall be made free and clear of, and
without reduction for, any withholding taxes. Any such taxes which are otherwise
imposed on payments to Echelon shall be the sole responsibility of Developer.
Developer shall provide Echelon with official receipts issued by the appropriate
taxing authority or such other evidence as is reasonably requested by Echelon to
establish that such taxes have been paid. Developer will cooperate with Echelon
and take all actions reasonably necessary in order to secure a reduction or
elimination of withholding taxes pursuant to any income tax treaty between the
United States and the jurisdiction of the appropriate taxing authority, as
applicable.
4.4 Audit Rights. Developer agrees to make and to maintain, until the
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expiration of two (2) years after the last payment under this Agreement is due,
complete books, records and accounts regarding products distributed by Developer
and payments due to Echelon hereunder. Echelon will have the right not more
than once every six (6) months to examine such books, records and accounts
during Developer's normal business hours to verify Developer's reports and
payments made to Echelon under this Agreement. Developer agrees promptly to pay
the amount of any shortfall and, if any such examination discloses a shortfall
in payment to Echelon of more than five percent (5%) for any quarter, to pay or
reimburse Echelon for the reasonable auditing expenses incurred in connection
with such examination.
5 SUPPORT.
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Support, updates and training will be provided pursuant to Echelon's
standard programs, policies and prices. Developer agrees that any Licensed
Software update or upgrade (the "Replacement Software") provided by Echelon is
subject to this Agreement. In the event that Echelon provides Developer with
Replacement Software, then Developer agrees to destroy all copies of the prior
release of the applicable Licensed Software within thirty (30) days after
receipt of Replacement Software; provided, however, that Developer may retain
one copy of the prior release for backup, archival and support purposes.
6 WARRANTY AND DISCLAIMER.
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Echelon warrants that the media on which the Licensed Software is
delivered will be free from defects in materials and workmanship for a period of
ninety (90) days after delivery. Except as expressly provided above, Echelon
licenses the Licensed Software to Developer on an "AS IS" basis. ECHELON AND
ITS SUPPLIERS MAKE AND DEVELOPER RECEIVES NO WARRANTIES OR CONDITIONS, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE LICENSED
SOFTWARE OR ITS USE OR OPERATION, ALONE OR IN COMBINATION WITH DEVELOPER'S
PRODUCT.
7 LIMITATION OF LIABILITY.
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IN NO EVENT SHALL ECHELON OR ITS SUPPLIERS BE LIABLE FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OR
DISTRIBUTION OF LICENSED SOFTWARE BY DEVELOPER OR ANY THIRD PARTY, WHETHER UNDER
THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY OR
OTHERWISE. IN NO EVENT SHALL ECHELON'S LIABILITY EXCEED THE TOTAL AMOUNT PAID
BY DEVELOPER TO ECHELON FOR THE LICENSED SOFTWARE GIVING RISE TO SUCH LIABILITY.
8 LABELLING.
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8.1 Notices. Developer shall not remove any copyright notices or
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proprietary legends contained within the Licensed Software. Developer shall
include a copyright notice in Developer's Product that contains Executable Files
if such Developer's Product as defined on Exhibit A is a computer program, and
on Developer's Product if such Developer's Product as defined on Exhibit A is a
hardware product, reflecting the copyright ownership of Echelon and, if
appropriate, of Developer. Developer agrees to indicate in Developer's
documentation for such Developer's Product that such product contains
copyrighted material of Echelon.
8.2 Trademarks. Unless Echelon otherwise agrees in writing, Developer may
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not use any Echelon trademarks, service marks, trade names, or logos in any
products, advertising, brochures, or promotional materials.
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9 CONFIDENTIALITY.
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9.1 Confidential Information. Developer acknowledges that information
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which Echelon discloses to Developer in a tangible form and which is marked
"Confidential" or "Proprietary" (or with a similar legend), or that is disclosed
orally and confirmed in writing as confidential within a reasonable time,
constitutes the proprietary and confidential information of Echelon
("Confidential Information"). Even if not so marked, the parties agree that the
Licensed Software and Documentation shall be "Confidential Information"
hereunder.
9.2 Use and Disclosure. Developer agrees not to use, disclose, distribute
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or disseminate Confidential Information except as expressly permitted under this
Agreement. Developer agrees to restrict access to such Confidential Information
to only those employees who need such Confidential Information in order for
Developer to exercise its rights hereunder. Developer will not use such
materials at a location other than Developer's address listed above without
Echelon's consent.
9.3 Remedies. Developer acknowledges that breach of the foregoing
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confidentiality obligation would cause irreparable harm to Echelon, the extent
of which would be difficult to ascertain. Accordingly, Developer agrees that
Echelon may seek immediate injunctive relief in the event of a breach by
Developer or any of its employees of the provisions of this Section 9. In the
event of such a breach, Echelon shall have the right to terminate this Agreement
immediately upon notice without opportunity to cure. In addition, Developer
shall indemnify Echelon for all losses, damages, costs and expenses which
Echelon may sustain or incur as a result of such a breach.
9.4 Notification. Developer agrees to notify Echelon promptly in the
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event of any breach of its security under conditions in which it would appear
that the Confidential Information were prejudiced or exposed to loss. Developer
shall, upon request of Echelon, take all other reasonable steps necessary to
recover any compromised trade secrets disclosed to or placed in the possession
of Developer by virtue of this Agreement. The cost of taking such steps shall
be borne solely by Developer.
9.5 Exceptions. The foregoing restrictions will not apply to information
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that Developer can demonstrate: (i) was known to Developer at the time of
disclosure to Developer by Echelon as shown by the files of Developer in
existence at the time of disclosure; (ii) has become publicly known through no
wrongful act of Developer; (iii) has been rightfully received from a third party
authorized by Echelon to make such disclosure without restriction; (iv) has been
approved for release by written authorization of Echelon; or (v) has been
independently developed by Developer without any use of Confidential Information
and by employees or other agents of Developer who have not been exposed to the
Confidential Information, provided that Developer can demonstrate such
independent development by a preponderance of the evidence, including documented
evidence prepared contemporaneously with such independent development.
10 DELIVERY OF THE LICENSED SOFTWARE.
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Echelon will deliver to Developer the number of sets of the Licensed
Software set forth on Exhibit B upon receipt of Developer's executed Exhibit B
and purchase order for the Licensed Software. Each set may contain copies of
the Object Code, Utilities and Support Files in more than one version or more
than one medium; Developer's license permits use of only one copy from each set
as provided herein.
11 INDEMNIFICATION.
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11.1 By Echelon. Echelon shall indemnify and hold harmless Developer from
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and against all liabilities payable to third parties and reasonable expenses of
Developer (including reasonable fees of attorneys and other professionals)
resulting from any infringement by the Licensed Software of any copyright or
trade secret of any third party. Developer shall promptly notify Echelon of any
such claim and, at Echelon's option, permit Echelon to control the defense and
settlement thereof. Developer shall not enter into any settlements that affect
Echelon without the prior written consent of Echelon, which shall not be
unreasonably withheld. In the event of such infringement, Echelon shall use
every reasonable effort to obtain a license under the intellectual property
rights that are infringed; provided that if in Echelon's judgment such a license
is not available on reasonable terms, Echelon may terminate the licenses granted
to Developer hereunder with respect to the infringing Licensed Software upon
written notice to Developer. Echelon shall have no liability for infringement
based on (i) use of other than the current release of the Licensed Software,
(ii) modification of the Licensed Software, or (iii) the combination or use of
the Licensed Software with software or any item or process not furnished by
Echelon if such infringement would have been avoided by the use of the Licensed
Software alone. IN NO EVENT SHALL ECHELON'S LIABILITY UNDER THIS SECTION 11.1
EXCEED THE TOTAL AMOUNT PAID BY DEVELOPER TO ECHELON FOR THE LICENSED SOFTWARE
GIVING RISE TO SUCH LIABILITY. THIS SECTION 11.1 STATES ECHELON'S ENTIRE
OBLIGATION WITH RESPECT TO INFRINGEMENT BY SUCH MATERIALS OF INTELLECTUAL
PROPERTY RIGHTS.
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11.2 By Developer. Except to the extent Echelon is responsible for a claim
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under Section 11.1 above, Developer shall indemnify, hold harmless and, at
Echelon's request, defend Echelon from and against any and all claims,
liabilities and expenses (including reasonable fees of attorneys and other
professionals) arising out of or in connection with Developer's use or
distribution of the Licensed Software.
12 TERM AND TERMINATION.
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12.1 Term. This Agreement shall continue in full force and effect unless
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and until terminated as provided in Section 12.2 below or in Section 2.4, 9.3,
11.1 or 13.2.
12.2 Termination.
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(a) If either party defaults in the performance of any provision of
this Agreement, then the non-defaulting party may give written notice to the
defaulting party that if the default is not cured within thirty (30) days the
Agreement will be terminated. If the non-defaulting party gives such notice and
the default is not cured during the thirty (30) day period, then the Agreement
will terminate immediately upon notice by the non-defaulting party.
(b) This Agreement will terminate automatically without notice, (i)
upon the institution by or against Developer of insolvency, receivership or
bankruptcy proceedings or any other proceedings for the settlement of
Developer's debts, (ii) upon Developer's making an assignment for the benefit of
creditors, or (iii) in the event of Developer's dissolution or insolvency.
(c) Developer may terminate this Agreement either in its entirety or
with respect to particular Licensed Software for any reason or for no reason
upon thirty (30) days written notice to Echelon.
12.3 Effect of Termination. In the event of termination of this Agreement,
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all rights and licenses granted herein shall terminate, except that the
following provisions shall apply: (i) Developer may continue to distribute
Developer's Product that contains the Executable Files for a period of ninety
(90) days after the effective date of such termination, subject to the payment
of applicable royalties; and (ii) Developer may continue to use the Licensed
Software only to provide support for third party end users existing as of the
end of the ninety (90) day period only for so long as Developer is contractually
obligated to provide such support and for internal end users for a one hundred
eighty (180) day period after the effective date of termination; provided,
however, that the foregoing provisions shall not apply if this Agreement is
terminated by Echelon pursuant to Section 9.3 or for the material default of
Developer, or is terminated by Developer pursuant to Section 12.2 (c) above, and
the foregoing provisions shall not apply with respect to Licensed Software for
which Developer's rights are terminated pursuant to Section 2.4 or 11.1.
Promptly following termination of Developer's rights under this Section 12.3,
Developer shall return to Echelon all copies of the Licensed Software then in
its possession or control and erase any such copies from computer memory.
12.4 Survival. The parties' rights and obligations under Sections 2.6,
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2.7, 4, 6, 7, 8, 9, 11 and 13 shall survive any termination of this Agreement.
All end user licenses granted by Developer to third parties prior to termination
or the end of the ninety (90) day period provided for in Section 12.3 above, as
applicable, shall also survive. In addition, Developer's license shall survive
with respect to copies of Developer's Product containing Executable Files that
were distributed internally prior to termination or the end of the ninety (90)
day period provided for in Section 12.3 above, as applicable, for so long as
Developer is not in breach of the applicable provisions of Exhibit D as set
forth in Section 3.
12.5 No Waiver. The failure of either party to enforce any provision of
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this Agreement shall not be deemed a waiver of such provision. The rights of
Echelon under this Section 12 are in addition to any other rights and remedies
provided by law or under this Agreement.
13 MISCELLANEOUS.
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13.1 Assignment. This Agreement may not be assigned by Developer without
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the prior written consent of a duly authorized representative of Echelon, and
any purported assignment without such consent shall be void ab initio.
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13.2 Change of Control. In the event that any third party directly or
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indirectly takes over or assumes the control of Developer or of substantially
all of Developer's assets then Echelon shall have the right to terminate this
Agreement effective upon notice to Developer.
13.3 Governing Law. This Agreement will be governed by and construed in
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accordance with the laws of the State of California, U.S.A., except that body of
California law concerning conflicts of law.
13.4 Arbitration. Either party may institute a suit for injunctive relief
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to prevent a breach of this Agreement (plus an award of costs and attorneys'
fees), and Echelon may institute an action for royalties under this Agreement
(plus
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costs and attorneys' fees), in any court of competent jurisdiction; as to any
such suit, both parties accept, and hereby submit, to the nonexclusive in
--
personam jurisdiction of any state or federal court in San Francisco or Santa
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Xxxxx County, California. Any other dispute arising out of or in connection with
or relating to this Agreement shall be determined by binding arbitration
conducted in accordance with this Agreement, and, at its sole election, Echelon
may elect such arbitration instead of a court action for adjudication of a
royalty dispute.
(a) Initiation of Arbitration. Either party may commence an
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arbitration proceeding hereunder by delivering a written demand to the other
party describing the dispute in sufficient detail to apprise the other party of
the facts and legal theory upon which the demanding party bases its claim and
stating the relief requested.
(b) Selection of Arbitrator. If the parties are unable to agree on
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an arbitrator within twenty (20) days after receipt of the demand for
arbitration, the parties shall, within ten (10) days after expiration of the
twenty-day period, exchange lists setting forth five names of proposed
arbitrators; each party shall be entitled to strike up to three names from the
other party's list; and the unstricken names shall be submitted to the President
of the American Arbitration Association and the arbitrator shall be selected by
him or his designee from among the names submitted. In the event of any failure
in the process, the arbitrator shall in any event be selected by the President
of the American Arbitration Association or his designee.
(c) Limitation on Powers of Arbitrator. The arbitrator shall apply
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California law (without reference to rules of conflicts of law) to the merits of
the dispute but the arbitrator shall not in any circumstances have the power or
authority to add to or detract from this Agreement, to find any provision of
this Agreement unconscionable or otherwise unenforceable or to award any party
punitive damages or any other remedy or damages prohibited by this Agreement.
(d) Arbitration Hearing. The arbitration hearing shall be conducted
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at a place (and at times) designated by the arbitrator in San Francisco or in
Santa Xxxxx County, California and shall begin not later than ninety (90) days
after receipt of the demand for arbitration and, regardless of the number of
issues presented, shall last no longer than fifteen (15) business days, with
each side limited to half of the available hearing time for presentation of its
evidence, examination and cross-examination of witnesses and argument. Except
to the extent inconsistent with this Agreement, the hearing shall be conducted
in accordance with the provisions of California Code of Civil Procedure
(S)(S)1282, et seq., and such other rules of procedure as the parties may agree
upon.
(e) Decision; Costs. The arbitrator shall render a decision within
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thirty (30) days after conclusion of the arbitration hearing. The joint costs
of arbitration (such as court reporting costs and the arbitrator's fees) shall
be borne equally by the parties except that the arbitrator, in his or her
discretion, may award such costs and/or reasonable attorney's fees and other
costs to be paid by the losing party to the prevailing party.
13.5 Notices. All notices and other communications required or permitted
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hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, or otherwise delivered by hand, by messenger or by
telecommunication, addressed to the addresses first set forth above or at such
other address furnished with a notice in the manner set forth herein. In the
case of Echelon such notices shall be sent to the Chief Financial Officer and in
the case of Developer any such notices shall be sent to _______________________,
or such other names provided by one party to the other. Such notices shall be
deemed to have been served when delivered or, if delivery is not accomplished by
reason of some fault of the addressee, when tendered.
13.6 Disclaimer of Agency. This Agreement shall not be construed as
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creating an agency, partnership or any other form of legal association between
the parties.
13.7 Partial Invalidity. If any paragraph, provision, or clause thereof in
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this Agreement shall be found or be held to be invalid or unenforceable in any
jurisdiction in which this Agreement is being performed, the remainder of this
Agreement shall be valid and enforceable and the parties shall negotiate, in
good faith, a substitute, valid and enforceable provision which most nearly
effects the parties' intent in entering into this Agreement. The parties agree
that all consideration for the promises made and obligations undertaken in this
Agreement is stated herein and that neither party executes this Agreement in
reliance on representations not included in this document.
13.8 Complete Understanding. This Agreement, including all Exhibits,
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constitutes the entire agreement between the parties with respect to the subject
matter hereof, and supersedes and replaces all prior or contemporaneous
understandings or agreements, written or oral, regarding such subject matter.
No terms of any purchase order issued by Developer shall be deemed to add to,
delete or modify the terms and conditions of this Agreement. No amendment to or
modification of this Agreement will be binding unless in writing and signed by a
duly authorized representative of both parties.
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13.9 Export Controls.
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(a) Developer understands and acknowledges that Echelon is subject
to regulation by agencies of the U.S. Government, including the U.S. Department
of Commerce, which prohibit export or diversion of certain products and
technology to certain countries. Any and all obligations of Echelon to provide
products as well as any technical assistance shall be subject in all respects to
such United States laws and regulations as shall from time to time govern the
license and delivery of technology and products abroad by persons subject to the
jurisdiction of the United States, including the Export Administration Act of
1979, as amended any successor legislation, and the Export Administration
Regulations issued by the Department of Commerce, International Trade
Administration, Bureau of Export Administration. Developer agrees to cooperate
with Echelon, including, without limitation, providing required documentation,
in order to obtain export licenses or exemptions therefrom. Developer warrants
that it will comply with the Export Administration Regulations or other United
States laws and regulations in effect from time to time.
(b) Without in any way limiting the provisions of this Agreement,
Developer agrees that unless prior written authorization is obtained from the
Bureau of Export Administration or the Export Administration Regulations
explicitly permitting the reexport, it will not export, reexport, or transship,
directly or indirectly, to country groups S or Z (as defined in the Export
Administration Regulations and which currently consist of Xxxxxxxx, Xxxx, Xxxxx,
Xxxxx Xxxxx, xxx Xxxxxxx), any of the technical data or software (if the
described on the Control List with a letter "A" following its Export Control
Number).
13.10 Governmental Approval. Developer represents and warrants that no
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consent, approval or authorization of or designation, declaration or filing with
any governmental authority is required in connection with the valid execution
and delivery of this Agreement. Alternatively, if any such actions are
required, Developer agrees to use its best efforts to obtain such consent,
approval or authorization and agrees to complete such designation, declaration
or filing. Echelon will cooperate as reasonably requested by Developer for the
completion of such required actions. Developer promptly will provide Echelon
with copies of any documents in connection with such actions.
13.11 United States Dollars. All license fees and royalties under this
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Agreement are quoted and to be paid in United States Dollars.
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AGREEMENT NUMBER C13-___________
EXHIBIT A-2
LONBUILDER(R) MICROPROCESSOR INTERFACE DEVELOPER'S KIT
EXECUTABLE FILES, DEVELOPMENT PURPOSE AND DEVELOPER'S PRODUCT
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A. The Object Code is the LonBuilder Microprocessor Interface Program
Libraries.
B. "Executable Files" means custom ROM images in Motorola S-record or Intel
Hex format created from the Object Code using the export facility of the
LonBuilder Developer's Workbench.
C. "Support files" means no files contained herein.
D. "Developer's Product" means a hardware product that includes a memory
device attached to the memory bus of a Neuron(R) 3150(R) Chip into which the
Executable Files are programmed, or that includes a Neuron Chip in which the
Executable Files have been programmed into EEPROM memory, and in both cases,
that is included in equipment which enables communication from an attached
computer onto a network otherwise comprised of LonWorks(R) Applications (as
defined in Echelon's OEM License Agreement with Developer). Developer's
Product also includes computer programs, solely in executable form, that execute
on the attached computer and which may incorporate one or more Support Files.
Notwithstanding that a portion of Developer's Product is a computer program,
Developer's Product is deemed to be a hardware product.
E. "Development Purpose" means the purpose of configuring custom parameters,
such as transceiver parameters, to create Executable Files, and using such
Executable Files solely for developing Developer's Product.
F. Additional software that is not considered Object Code, Support Files or
Utilities will be provided in the Examples directory. Developer shall have the
right to use, modify, reproduce and distribute such software for any purpose.
Except as specifically modified by the previous sentence, such software shall be
considered to be the Licensed Software for all purposes under this Agreement
except that the indemnity set forth in Section 11 shall not apply to such
software, AND ECHELON DISCLAIMS ANY WARRANTY OF NONINFRINGEMENT WITH RESPECT TO
SUCH SOFTWARE.
G. For the purposes of the LonBuilder Microprocessor Interface Developer's
Kit, Section 5 is replaced in its entirety with the following:
5 SUPPORT.
-------
5.1 Definition "Support" means:
----------
(i) Responses to technical questions regarding the use of the Licensed
Software when such inquiries are submitted via either telephone, electronic
mail, or facsimile.
(ii) Updates to the Licensed Software that Echelon provides generally to
its customers under support agreements for no additional fee other than the
support contract fee.
(iii) Support for MIP/DPS covers the Network Interface API for non-Windows
hosts only. It does not include support for network management applications.
Echelon reserves the right to decline to respond to technical questions
involving:
a) Product developments that duplicate the functions of Echelon's
products.
b) Third-party products.
c) Debugging of Developer's software code
1
AGREEMENT NUMBER C13-________
EXHIBIT A-2 (continued)
LONBUILDER(R) MICROPROCESSOR INTERFACE DEVELOPER'S KIT
EXECUTABLE FILES, DEVELOPMENT PURPOSE AND DEVELOPER'S PRODUCT
-------------------------------------------------------------
5.2 Support Hours Echelon's support hours are Monday through Friday,
-------------
8:00 A.M. to 4 :30 P.M., Pacific time in the US, 0900 to 1700 Greenwich Mean
Time in Europe, and 0900 to 1700 in Japan. Service is not available on Echelon's
local regularly scheduled holidays at each of these locations. When Echelon
does not respond immediately to a Support inquiry, Echelon will use reasonable
efforts to respond within eight (8) business hours. Developer may designate up
to three individuals who may place support calls with Echelon.
5.3 Term and Renewal For a period of one (1) year after the date that
----------------
Exhibit A-2 has been signed by both parties (the "Support Period"), Echelon will
provide Support to Developer at no additional charge other than the license fee.
At least sixty (60) days prior to the end of then current Support term, Echelon
will provide Developer with Echelon's then current policies and prices and issue
an invoice to Developer for a twelve (12) month renewal term. Developer may
renew Support by paying the amount of the invoice on or before the last day of
the then current term. If Developer fails to renew the Support, the Support will
automatically terminate at the end of the then current term (and notwithstanding
any failure of Echelon to provide notice under this Section 5.2). If Developer
allows the Support to terminate without renewal and subsequently orders Support,
then such Support shall again be governed by this Agreement and the then current
Echelon standard policies and prices for Support.
5.4 Updates Developer agrees that any Licensed Software update or
-------
upgrade (the "Replacement Software") provided by Echelon is subject to this
Agreement (whether provided as part of Support or for a separate fee). In the
event that Echelon provides Developer with Replacement Software, then Developer
agrees to destroy all copies of the prior release of the applicable Licensed
Software within thirty (30) days after receipt of Replacement Software;
provided, however, that Developer may retain one copy of the prior release for
backup, archival and support purposes.
ECHELON CORPORATION DEVELOPER:_________________________
(Company Name)
Signature:____________________ Signature:_________________________
______________________________ ___________________________________
(Print Name) (Print Name)
Title:________________________ Title:_____________________________
Date:_________________________ Date:_____________________________
2
AGREEMENT NUMBER C13-__________________
EXHIBIT B-2
LONBUILDER(R) MICROPROCESSOR INTERFACE DEVELOPER'S KIT
MIP LICENSE FEES
----------------
Licensed
Software
Echelon License
Model No. Description Quantity Fee
-------------------- -------------------------------- ------------ ------------
23201 LonBuilder(R) Microprocessor
Interface Developer's Kit
A. As of the date of this Agreement, Developer designates the following
individual to fulfill Developer's royalty reporting requirements under this
Agreement:
Name:___________________ Title:________________________
Address:________________ Phone #:______________________
________________________ Fax #:________________________
________________________
Developer agrees to notify Echelon of any change in the above information.
ECHELON CORPORATION DEVELOPER:________________________
(Company Name)
Signature:____________________ Signature:________________________
______________________________ __________________________________
(Print Name) (Print Name)
Title:________________________ Title:____________________________
Date:_________________________ Date:_____________________________
3
AGREEMENT NUMBER C13-_________
EXHIBIT C-2
LONBUILDER(R) MICROPROCESSOR INTERFACE DEVELOPER'S KIT
MIP ROYALTIES
-------------
A. Royalties.
----------
Royalty Annual Unit Volume
Level Commitment Level Royalty
------- -------------------------- -------
Xxxxx 0 Less than 2,500 $5.00
Xxxxx 0 2,500 to 4,999 inclusive $4.00
Xxxxx 0 5,000 to 9,999 inclusive $3.00
Level 4 10,000 to 24,999 inclusive $2.50
Level 5 25,000 to 49,999 inclusive $2.00
Level 6 50,000 and more $1.50
B. For the first year of this Agreement, Developer's royalty will be
based on Developer's expected volume for such year. For each subsequent year of
this Agreement, Developer's royalty will be based on the volume actually
achieved in the previous year.
C. Developer's expected volume for the first year of this Agreement as
mutually agreed with Echelon is ______________. If no volume level is set forth
in the previous sentence, then Developer shall be deemed to have specified level
1.
D. Royalties for the first 100 copies are included with the license fee
set forth on Exhibit B-2.
ECHELON CORPORATION DEVELOPER:_______________________
(Company Name)
Signature:______________________ Signature:_______________________
________________________________ _________________________________
(Print Name) (Print Name)
Title:__________________________ Title:___________________________
Date:___________________________ Date:____________________________
4
AGREEMENT NUMBER C13-_____________
EXHIBIT D
END USER LICENSE RESTRICTIONS
-----------------------------
All end user licenses of Developer's Product shall include provisions that:
(1) only a non-exclusive, non-transferable license to use the copy of the
software on either (a) a single computer, or (b) a network server for access by
one user, by way of a terminal or computer attached to the network server, is
granted. Should the user choose to install the software on additional
computers, or increase user access via a network server, the user must first
acquire a license for each additional such computer or user who will use the
software, as applicable, with the understanding that at any one time (and
regardless of the number of media sets included with the software), the number
of computers on which the software is installed or users who are permitted to
use the software, as applicable, may not exceed the number of single-user
licenses that the user has;
(2) Intentionally left blank.
(3) Developer or its suppliers retains all title and copyrights to the
software, and all copies thereof, and the license is not a sale;
(4) the end user may not copy the software, except for one (1) copy of
the software solely for backup purposes and provided that the end user
reproduces proprietary notices on the copy;
(5) the end user may not modify, translate, reverse assemble, decompile,
or disassemble the software;
(6) The software and accompanying documentation are deemed to be
"commercial computer software" and "commercial computer software documentation",
respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as
applicable. Any use, modification, reproduction, release, performing,
displaying or disclosing of the software and accompanying documentation by the
U.S. Government shall be governed solely by the terms of this agreement and
shall be prohibited except to the extent expressly permitted by the terms of
this agreement;
(7) Echelon is a direct and intended beneficiary of the license agreement
and may enforce it directly against the end user;
(8) Echelon shall not be liable to the end user for any loss of data, lost
profits, cost of cover or other special, incidental, punitive, consequential, or
indirect damages arising out of the use of the software;
(9) Echelon makes no warranties, express, implied or statutory, regarding
the software, including without limitation the implied warranties of
merchantability and fitness for a particular purpose;
(10) the end user's rights with respect to the software may be terminated,
either immediately or after a notice period not exceeding thirty (30) days, upon
unauthorized copying of the software or failure to comply with the restrictions
contained in the license agreement; and
(11) upon termination of the license, the end user shall return all copies
of the software to the party from which the software was acquired.
Echelon may be referred to as Developer's supplier.
5
AGREEMENT NUMBER C13-____________
EXHIBIT A-14
LNS DEVELOPER'S KIT FOR WINDOWS/(R)/
EXECUTABLE FILES, DEVELOPMENT PURPOSE AND DEVELOPER'S PRODUCT
-------------------------------------------------------------
A. "Object Code" means those files set forth in the file OBJECT.TXT in the
product LICENSE directories.
B. "Executable Files" means those files set forth in the EXECUTE.TXT file in
the product LICENSE directories.
C. "Support Files" means those files listed in the file SUPPORT.TXT in the
product LICENSE directories.
D. "Developer's Product" means Developer's computer program(s), solely in
executable form, that make calls to the LNS Developer's Kit for Windows
Executable File. Developer's Product is a computer program.
E. "Development Purpose" means the purpose of incorporating calls to the LNS
Developer's Kit for Windows Executable Files.
F. Additional software that is not designated as Object Code, Executable
Files, Support Files, or Source Files will be provided in the EXA or EXAMPLES
directories and their subdirectories, and in the files contained within the
LONWORKS\DRIVERS directory that are also listed in the SOURCE.TXT file in the
product LICENSE directories. Developer shall have the right to use, modify,
reproduce and distribute such software, in binary form only, solely for use with
Developer's Product. Except as specifically modified by the previous sentence,
such software shall be considered to be the Licensed Software for all purposes
under this Agreement except that the indemnity set forth in Section 11 shall not
apply to such software, AND ECHELON DISCLAIMS ANY WARRANTY OF NONINFRINGEMENT
WITH RESPECT TO SUCH SOFTWARE.
G. For the purposes of the LNS Developer's Kit for Windows, add the following
sentences to the end of Section 4.2(a): "Echelon may provide Developer with
successor versions of Exhibit C-14. If Developer does not execute Exhibit C-14
as of the date Developer executes this Exhibit A-14, then Echelon will only
accept the then current version of Exhibit C-14 at such time as Developer
executes an Exhibit C-14. The terms and conditions with respect to royalties
set forth in an executed copy of Exhibit C-14 shall be fixed for the period set
forth in Exhibit C-14 (the "Exhibit Term"). After expiration of the Exhibit
Term, if Echelon has provided Developer with successor versions of Exhibit C-14,
Developer must execute the then current successor version of Exhibit C-14 within
thirty (30) days after the end of the Exhibit Term. After expiration of the
Exhibit Term, if Echelon has not provided Developer with successor versions of
Exhibit C-14, the last version of Exhibit C-14 executed by Developer shall
remain in effect until thirty (30) days after Echelon has provided a successor
version of Exhibit C-14 to Developer, during which thirty (30) day period
Developer must execute such successor version. If Developer does not execute
any successor version of Exhibit C-14 during the applicable thirty (30) day
period as required above, Developer's right to distribute Executable Files shall
terminate until such time as Developer executes the then current successor
version of Exhibit C-14."
H. For the purposes of the LNS Developer's Kit for Windows, Section 5 is
replaced in its entirety with the following:
5 SUPPORT.
-------
5.1 Definition "Support" means:
----------
(i) Responses to technical questions regarding the use of the Licensed
Software when such inquiries are submitted via either telephone, electronic
mail, or facsimile.
(ii) Updates to the Licensed Software that Echelon provides generally to
its customers under support agreements for no additional fee other than the
support contract fee.
(iii) Support for LNS for Windows only covers the LCA Object Server ActiveX
Control, the LCA Data Server API, the Network Services API, and the Field
Compiler API. It does not include support for the Network Interface API or
lower level API's. Echelon reserves the right to decline to respond to
technical questions involving:
a) Product developments that duplicate the functions of Echelon's
products.
b) Third-party products.
c) Debugging of Developer's software code
1
AGREEMENT NUMBER C13-____________
EXHIBIT A-14 (CONTINUED)
LNS DEVELOPER'S KIT FOR WINDOWS/(R)/
EXECUTABLE FILES, DEVELOPMENT PURPOSE AND DEVELOPER'S PRODUCT
-------------------------------------------------------------
5.2 Support Hours
-------------
Echelon's support hours are Monday through Friday, 8:00 A.M. to 4 :30
P.M., Pacific time in the US, 0900 to 1700 Greenwich Mean Time in Europe, and
0900 to 1700 in Japan. Service is not available on Echelon's local regularly
scheduled holidays at each of these locations. When Echelon does not respond
immediately to a Support inquiry, Echelon will use reasonable efforts to respond
within eight (8) business hours. Developer may designate up to three
individuals who may place support calls with Echelon.
5.3 Term and Renewal For a period of one (1) year after the date that
----------------
Exhibit A-14 has been signed by both parties (the "Support Period"), Echelon
will provide Support to Developer at no additional charge other than the license
fee. At least sixty (60) days prior to the end of then current Support term,
Echelon will provide Developer with Echelon's then current policies and prices
and issue an invoice to Developer for a twelve (12) month renewal term.
Developer may renew Support by paying the amount of the invoice on or before the
last day of the then current term. If Developer fails to renew the Support, the
Support will automatically terminate at the end of the then current term (and
notwithstanding any failure of Echelon to provide notice under this Section
5.2). If Developer allows the Support to terminate without renewal and
subsequently orders Support, then such Support shall again be governed by this
Agreement and the then current Echelon standard policies and prices for Support.
5.4 Updates Developer agrees that any Licensed Software update or
-------
upgrade (the "Replacement Software") provided by Echelon is subject to this
Agreement (whether provided as part of Support or for a separate fee). In the
event that Echelon provides Developer with Replacement Software, then Developer
agrees to destroy all copies of the prior release of the applicable Licensed
Software within thirty (30) days after receipt of Replacement Software;
provided, however, that Developer may retain one copy of the prior release for
backup, archival and support purposes.
ECHELON CORPORATION DEVELOPER:__________________
(Company Name)
Signature:_________________ Signature:__________________
___________________________ ____________________________
(Print Name) (Print Name)
Title:______________________ Title:______________________
Date: ______________________ Date:_______________________
Windows is a registered trademark of Microsoft Corporation.
2
AGREEMENT NUMBER C13-_____________
EXHIBIT B-14
LNS DEVELOPER'S KIT FOR WINDOWS/(R)/
LICENSE FEES
------------
Licensed Software
Echelon Model No. Description Quantity License Fee
------------------------- -------------------------------------------- ------------- --------------
34303 LNS Developer's Kit for Windows 1
A. As of the date of this Agreement, Developer designates the following
individual to fulfill Developer's royalty reporting requirements under this
Agreement:
Name:_____________________________ Title:____________________________
Address:__________________________ Phone #:__________________________
Fax #:____________________________
__________________________________
__________________________________
Developer agrees to notify Echelon of any change in the above information.
ECHELON CORPORATION DEVELOPER:________________________
(Company Name)
Signature:_______________________ Signature:________________________
_________________________________ __________________________________
(Print Name) (Print Name)
Title:___________________________ Title:____________________________
Date:____________________________ Date:_____________________________
3
AGREEMENT NUMBER C13-___________
EXHIBIT C-14
LNS DEVELOPER'S KIT FOR WINDOWS/(R)/
ROYALTIES
---------
A. Royalties.
---------
As used herein, "Node" means a device that implements layers 1 through 6
of the LonTalk Protocol; "Installed Node" means a Node that has a valid LonTalk
Domain, Subnet, and Node address as defined in the Neuron(R) Chip Databook;
"Commissioned Node" means an Installed Node with an entry in the LNS database
available for use by the Executable File. Developer's royalty payment for each
copy of an LNS Developer's Kit for Windows Executable File or an LNS Host API
Executable File that is distributed by or for Developer shall be $195 plus an
additional charge for each increase in the total capacity of Commissioned Nodes.
There shall be no additional charge for the first 64 Commissioned Nodes added by
an Executable File. The additional royalties payable for such increases after
the first 64 Commissioned Nodes shall be $1.50 per additional Commissioned Node.
An Executable File shall be deemed to have increased the Commissioned Node
capacity by 32,768 Commissioned Nodes per LNS database unless Developer
explicitly restricts the capacity of the Executable File either by implementing
source code that prevents the Executable File from increasing the number of
Commissioned Nodes by more than the reported number of Commissioned Nodes or by
implementing any other method for achieving such limitation as described in the
Documentation. With respect to certain Monitoring and Control and Plug-In
applications, an alternate royalty structure applies as set forth in paragraphs
B and C.
B. Monitoring and Control Royalties.
--------------------------------
Developer's royalty payment for each copy of an Executable File that does
not include any of the following shall be $195: (a) code that increases the
total capacity of Commissioned Nodes; (b) an Access Key as defined in the
Documentation; (c) the LCAENG.DLL file as described in the EXECUTE.TXT file in
the ObjectServer\License directory; (d) the NSSENG.EXE file as described in the
EXECUTE.TXT file in the NetworkServices\License directory; and (e) the database
files identified in the EXECUTE.TXT file in the ObjectServer\License directory.
The list of file names may be changed by Echelon in the EXECUTE.TXT files in the
License directories.
C. Device Plug-In Royalties.
------------------------
A royalty payment is not required for an Executable File that accesses a
single device type and conforms to the device plug-in specifications described
in the Documentation as long as the Executable File does not include any of the
following: (a) code that increases the total capacity of Commissioned Nodes; (b)
an Access Key as defined in the Documentation; (c) the LCAENG.DLL file as
described in the EXECUTE.TXT file in the ObjectServer\License directory; (d) the
NSSENG.EXE file as described in the EXECUTE.TXT file in the
NetworkServices\License directory; and (e) the database files identified in the
EXECUTE.TXT file in the ObjectServer\License directory. The list of file names
may be changed by Echelon in the EXECUTE.TXT files in the License directories.
D. For the purposes of the LNS Developer's Kit for Windows, add the following
to the end of Section 4.2(c):
"If such Developer's Product is distributed generally to third party
customers or to internal users who are existing licensees as an error correction
but also incorporates new features and functions, then the royalty due for such
distributions shall be 15% of the royalty due by Developer according to the
applicable rate set forth in Exhibit C-14. The foregoing provisions of this
subsections (c) only apply if such Developer's Product does not increase the
total capacity of the Commissioned Nodes. Notwithstanding the foregoing, the
standard royalty shall be due for such Developer's Product distributed
internally or to third party customers that are not existing licensees of the
Executable Files."
4
AGREEMENT NUMBER C13-__________
EXHIBIT C-14 (continued)
LNS DEVELOPER'S KIT FOR WINDOWS/(R)/
ROYALTIES
---------
E. For the purposes of the LNS Developer's Kit for Windows, add the following
new Section 4.2(d):
"(d) As used herein, "Node" means a device that implements layers 1
through 6 of the LonTalk Protocol and "Demonstration Copy" means a version of
Developer's Product that includes any Executable Files that is (i) distributed
for pre-sales, marketing purposes only to Developer's potential customers, (ii)
distributed for no fee (or for media and handling charges only), and (iii) can
install and manage only four Nodes. Notwithstanding paragraph (a) above, no
royalty will be payable for a reasonable number of Demonstration Copies
distributed by or for Developer. Developer shall submit to Echelon within
thirty (30) days after the end of each calendar quarter or part thereof during
the term of this Agreement a reasonably detailed report for the quarter of the
number of Demonstration Copies distributed by or for Developer. All other terms
of this Agreement remain in effect with respect to Demonstration Copies,
including but not limited to Section 3, END USER LICENSE RESTRICTIONS."
F. For the purposes of the LNS Developer's Kit for Windows, add the following
new Section 4.2(e):
"(e) If Echelon provides Replacement Software (as defined in Section 5) to
Developer for no fee (or for media and handling charges only), and if Developer
distributes such Replacement Software to its existing licensees of the
Executable Files for no fee (or for media and handling charges only), then no
royalty shall be due for such Replacement Software. If Echelon charges a fee
(other than media and handling charges only) for such Replacement Software,
and/or if Developer charges its customers a fee (other than media and handling
charges only) for such Replacement Software, and such Replacement Software is
distributed to Developer's existing licensees of the Executable Files, then the
royalty due for such Replacement Software shall be 15% of the royalty due by
Developer according to the applicable rate set forth in Exhibit C-14. The
foregoing provisions of this subsection (e) only apply if the Replacement
Software does not increase the total capacity of the Commissioned Nodes.
Notwithstanding the foregoing, the standard royalty shall be due for copies of
Replacement Software that are distributed to customers that are not existing
licensees of the Executable Files."
G. Exhibit Term
------------
The Exhibit Term for this Exhibit C-14 shall be two (2) years from the date this
Exhibit is executed.
ECHELON CORPORATION DEVELOPER:_______________________
(Company Name)
Signature:_____________________ Signature:_______________________
_______________________________ _________________________________
(Print Name) (Print Name)
Title:_________________________ Title:___________________________
Date:___________________________ Date:____________________________
5
Agreement Number C13-__________
EXHIBIT D
END USER LICENSE RESTRICTIONS
-----------------------------
All end user licenses of Developer's Product shall include provisions that:
(1) only a non-exclusive, non-transferable license to use the copy of the
software on either (a) a single computer, or (b) a network server for access by
one user, by way of a terminal or computer attached to the network server, is
granted. Should the user choose to install the software on additional
computers, or increase user access via a network server, the user must first
acquire a license for each additional such computer or user who will use the
software, as applicable, with the understanding that at any one time (and
regardless of the number of media sets included with the software), the number
of computers on which the software is installed or users who are permitted to
use the software, as applicable, may not exceed the number of single-user
licenses that the user has;
(2) Intentionally left blank.
(3) Developer or its suppliers retains all title and copyrights to the
software, and all copies thereof, and the license is not a sale;
(4) the end user may not copy the software, except for one (1) copy of
the software solely for backup purposes and provided that the end user
reproduces proprietary notices on the copy;
(5) the end user may not modify, translate, reverse assemble, decompile,
or disassemble the software;
(6) The software and accompanying documentation are deemed to be
"commercial computer software" and "commercial computer software documentation",
respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as
applicable. Any use, modification, reproduction, release, performing,
displaying or disclosing of the software and accompanying documentation by the
U.S. Government shall be governed solely by the terms of this agreement and
shall be prohibited except to the extent expressly permitted by the terms of
this agreement;
(7) Echelon is a direct and intended beneficiary of the license agreement
and may enforce it directly against the end user;
(8) Echelon shall not be liable to the end user for any loss of data,
lost profits, cost of cover or other special, incidental, punitive,
consequential, or indirect damages arising out of the use of the software;
(9) Echelon makes no warranties, express, implied or statutory, regarding
the software, including without limitation the implied warranties of
merchantability and fitness for a particular purpose;
(10) the end user's rights with respect to the software may be
terminated, either immediately or after a notice period not exceeding thirty
(30) days, upon unauthorized copying of the software or failure to comply with
the restrictions contained in the license agreement; and
(11) upon termination of the license, the end user shall return all
copies of the software to the party from which the software was acquired.
Echelon may be referred to as Developer's supplier.
6
