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EXHIBIT 10.12
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is made and entered into
as of the Effective Date, by and between 3Dlabs Inc. ("3Dlabs") with principal
offices at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000, XXX
and AccelGraphics, Inc. ("Licensee"), a company with principal offices at 0000
Xxxxxx Xx., Xxx Xxxx, Xxxxxxxxxx 00000.
RECITALS
A. 3Dlabs is the owner of, or has acquired rights to, the
Software Products and the Documentation (as defined below); and
B. 3Dlabs desires to grant to Licensee and Licensee desires to
obtain from 3Dlabs a non-exclusive license to use the Software Products and
Documentation on the terms and conditions of the Agreement;
NOW, THEREFORE, the parties to this Agreement agree as follows:
1. DEFINITIONS.
1.1 "Software Products" shall mean the computer programs
identified on Exhibit A to this Agreement that become subject to this Agreement
as set forth in Section 2 below, together with any subsequent error corrections
of updates supplied to Licensee by 3Dlabs pursuant to this Agreement.
1.2 "Derivative Software Products" shall mean computer
programs in machine readable binary or source code format developed or otherwise
acquired by Licensee which are a modification of enhancement to, derived from or
based upon Software Products.
1.3 "Documentation" shall mean all manuals, user
documentation, and other related materials pertaining to the Software Products
that 3Dlabs provides to Licensee for use in connection with the Software
Products.
1.4 "Effective Date" shall mean the last date set forth
opposite the parties signature lines.
1.5 "3Dlabs Chip Products" shall mean the 3Dlabs
graphics accelerator products listed on Exhibit A.
2. INCLUSION OF SOFTWARE PRODUCTS UNDER THE AGREEMENT.
2.1 Binary Format. Upon Licensee's purchase of any 3Dlabs Chip
Products, the executable binary format Software Products listed in Exhibit A for
such 3Dlabs Chip Products shall become "Software Products" for purposes of this
License Agreement.
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2.2 Source Code Format. Upon Licensee's purchase of any 3Dlabs
Chip Product, Licensee may place an order with 3Dlabs for one or more of the
source code Software Products listed in Exhibit A for such 3Dlabs Chip Product.
Licensee's order shall include payment of the license fee for such source code
as specified in Exhibit A. Upon 3Dlabs' acceptance of such order, such source
code shall become "Software Products" for purposes of this Agreement.
2.3 Modification of Software Products. The parties may amend
Exhibit A from time to time in writing. In addition (a) if 3Dlabs discontinues
any 3Dlabs Chip Product or Software Products listed on Exhibit A, then 3Dlabs
may modify Exhibit A to delete such Products, and (b) if Licensee purchases one
or more new 3Dlabs graphics accelerator products from 3Dlabs, then 3Dlabs may
modify Exhibit A to include such products as 3Dlabs Chip Products under Exhibit
A and to add software products designed for use with such 3Dlabs Chip Products
as "Software Products" under Exhibit A.
3. GRANT OF RIGHTS. From the Effective Date and as Software
Products are added to this Agreement under Section 2 above, until terminated in
accordance with the terms of this Agreement:
3.1 Binary Format. 3Dlabs hereby grants, and Licensee hereby
accepts, subject to the terms and conditions of this Agreement, a non-exclusive
license to reproduce, distribute, export, upgrade and sublicense others to use
the binary format Software Products (the "Binary Software Products") and the
related Documentation solely for use with 3Dlabs Chip Products purchased by
Licensee from 3Dlabs.
Notwithstanding Licensee's right to sublicense the Binary
Software Products to others for use with the 3Dlabs Chip Products, Licensee
shall have no right to sublicense or authorize parties to reproduce, copy or
otherwise manufacture the Binary Software Products, without 3Dlabs' prior
written permission. Licensee agrees not to attempt to modify, reverse engineer,
disassemble, decompile or trace the execution of the Binary Software products,
or of any portion thereof.
3.2 Source Code Format.
3.2.1 Drivers Source Code. 3Dlabs hereby grants
and Licensee hereby accepts a nonexclusive, nontransferable license to use and
modify the source code for drivers Software Products solely for the purpose of
developing Derivative Software Products for use with 3Dlabs Chip Products
purchased by Licensee from 3Dlabs. Licensee shall have no right to disclose,
sub-license, export, sell or otherwise distribute the Software Products,
Derivative Software Products or any portion thereof in source code format nor
shall Licensee authorize other parties to market, reproduce, have reproduced or
otherwise manufacture the Software products or Derivative Software Products in
source code format.
ANY LICENSE TO USE THE SOURCE CODE OF A DRIVERS SOFTWARE PRODUCT
CONTAINING MICROSOFT CORPORATION'S SOFTWARE IS SUBJECT TO LICENSEE HAVING
PHYSICAL POSSESSION OF AN ORIGINAL MICROSOFT
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SOFTWARE LICENSE FOR THE APPLICABLE MICROSOFT VERSION AT ALL TIMES DURING THE
USE THEREOF. LICENSEE SHALL HOLD 3DLABS HARMLESS FROM ANY LOSS, LIABILITY AND/OR
SETTLEMENT COSTS (INCLUDING REASONABLE ATTORNEYS' FEES) RESULTING FROM ANY CLAIM
AGAINST 3DLABS RELATED TO LICENSEE'S FAILURE TO HAVE SUCH A LICENSE DURING
LICENSEE'S USE OF SUCH SOFTWARE.
4. DELIVERY.
4.1 Binary Software Products. After the Effective Date, 3Dlabs
shall deliver to Licensee a master copy of the Binary Software Products licensed
under this Agreement for use with such 3Dlabs Chip Product, in object code
format and applicable Documentation. 3Dlabs shall deliver the foregoing in
electronic files or disk format, at 3Dlabs' option.
4.2 Source Software Products. After 3Dlabs' receipt of payment
and acceptance of Licensee's order for Software Products in source code format,
as set forth in Section 2 above, 3Dlabs shall deliver to licensee the source
code for the applicable Software Products, together with related Documentation.
3Dlabs shall deliver foregoing in electronic files or disk format, at 3Dlabs'
option.
5. MODIFICATIONS.
5.1 Error Corrections and Updates. 3Dlabs will provide
Licensee with error corrections, bug fixes, patches or other updates to each
Software Product in object code format to the extent available in accordance
with 3Dlabs' release schedule for a period of ninety (90) days from the date of
3Dlabs' delivery of the original Software Product(s) under this Agreement.
5.2 Modifications by 3Dlabs. 3Dlabs shall be under no
obligation to make modifications that may be required for Licensee-specific
hardware, firmware, software, or other requirements. All error corrections, bug
fixes, patches, updates or other modifications to the Software Products or
Documentation made by 3Dlabs or its suppliers shall be the sole property of
3Dlabs or of its suppliers, or both.
5.3 Modifications by Licensee. Licensee shall promptly provide
to 3Dlabs all error corrections, bug fixes, patches, updates or other
modifications to the Software Products or Documentation made by Licensee or by
Licensee's sublicensees and hereby grants to 3Dlabs a limited worldwide,
non-royalty bearing license to use, modify, enhance, edit, reformat, rewrite,
copy, reissue and create derivative works of, sublicense and distribute such
modifications, provided that 3Dlabs shall sublicense such modifications under
terms that are no less restrictive than 3D/labs employs for its similar
products.
6. LICENSE FEES AND PAYMENT.
6.1 License Fee. In consideration of the license rights
granted in Section 3 above, Licensee shall pay the License fees or other
consideration for the Software Products and Documentation as set forth on
Exhibit A to this Agreement.
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6.2 Taxes and Other Charges. Licensee shall be responsible for
paying all (i) sales, use, excise, value-added or other tax or governmental
charges imposed on the licensing or use of the Software Products, Derivative
Software Products and Documentation (ii) freight, insurance and installation
charges, and (iii) import or export duties or like charges.
7. DERIVATIVE SOFTWARE PRODUCTS.
7.1 Title to Software Products Incorporated in Derivative
Software Products. Title to and ownership of any portion of the Software
Products incorporated into a Derivative Software Product shall at all times
remain with 3Dlabs or its supplier, or both, and Licensee shall not have any
title or ownership interest therein.
7.2 Maintenance of Derivative Software Products. 3Dlabs shall
not be required to maintain or otherwise repair any Derivative Software
Products. Any assistance in repairing errors or defects in the Derivative
Software Products which may be provided by 3Dlabs, in its sole discretion, shall
be subject to the terms of a separate agreement under which Licensee shall pay
3Dlabs in accordance with 3Dlabs' then-current charges for such services.
7.3 Products Developed by 3Dlabs. Nothing contained in this
Agreement shall be construed to limit 3Dlabs' rights to modify the Software
Products or to develop other Products which are similar to or offer the same or
similar improvements as Derivative Software Products developed by Licensee.
8. PROTECTION OF SOFTWARE PRODUCTS.
8.1 Proprietary Notices. Licensee agrees not to remove,
obliterate, or cancel from view any copyright, trademark, confidentiality or
other proprietary notice or xxxx appearing on any of the Software Products or on
output generated by the Software Products and to reproduce and include the same
on each copy of the Software Products and Derivative Software Products.
8.2 Ownership and Protection of Software Products. Licensee
acknowledges that all copies of the Software Products in any form provided by
3Dlabs or made by Licensee are the sole property of 3Dlabs or its suppliers, or
both. Licensee shall not have any right, title or interest in or to any Software
Products, or copies thereof except as expressly provided in this Agreement, and
further shall secure and protect all Software Products, Derivative Software
Products and Documentation consistent with maintenance of 3Dlabs' proprietary
rights therein.
8.3 Copies. Licensee shall not copy the source code of the
Software Products, except that Licensee may make one copy of the source code
solely for archival or backup purpose and may make copies of the source code
solely for use by Licensee's employees who have a need to use such source code
for the purposes authorized under this agreement. All source code of the
Software Products shall remain on Licensee's business premises.
8.4 Xxxx Ownership. Nothing contained in this Agreement shall
be construed as conferring any license or right with respect to any trademark,
trade name, brand name, or the corporate name of 3Dlabs, or any of 3Dlabs'
suppliers.
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9. CONFIDENTIALITY.
9.1 Maintenance of Confidential Information. Licensee
acknowledges that the Software Products and Documentation contain valuable
proprietary information and trade secrets of 3Dlabs or its suppliers, or both,
and Licensee will not release, disclose or otherwise permit access to such
confidential information or use the information in such a way that other parties
can gain access to such information. In particular, Licensee shall not disclose
or cause to be disclosed the Software Products code, documentation, or other
information contained in the source code to any third party without the prior
written consent of 3Dlabs and, where applicable, 3Dlabs' suppliers. 3Dlabs and
Licensee agree to xxxx written materials as "Confidential" if they are to be
treated as confidential in nature. Oral communications that are confidential in
nature will be identified as such before, during or immediately after the
communication. Licensee warrants that all those individuals having access to the
Software Products under this Agreement will observe and perform the obligations
in this Agreement with respect to confidential information.
9.2 Injunctive Relief. Licensee acknowledges that the
unauthorized use, transfer, sublicensing or disclosure of the Software Products,
Derivative Software Products, Documentation or copies thereof may cause
irreparable injury to 3Dlabs, and under such circumstances 3Dlabs shall be
entitled to equitable relief, including, but not limited to, preliminary and
permanent injunctive relief, and Licensee waives any requirements that a bond be
posted.
10. LIMITED WARRANTY; INFRINGEMENT. 3Dlabs warrants to Licensee
that as of the date of this Agreement it has no knowledge that the Software
Products or Documentation infringe or otherwise make unauthorized use of any
copyright, trademark, trade secret or proprietary right of any third party.
10.1 Indemnification. 3Dlabs shall at its sole option, either
reimburse Licensee for the cost of defense, or defend a suit or proceeding
brought against Licensee, but only to the extent such suit or proceeding is
based on a claim that the Software Product, solely as furnished by 3Dlabs to
Licensee under this Contract, constitutes direct infringement of any United
States trademark, copyright or patent and 3Dlabs shall pay, or at its sole
option, reimburse Licensee for damages and cost finally awarded therein against
Licensee with respect to such matter, provided that Licensee promptly informs
and furnishes 3Dlabs with a copy of each communication, notice or other action
relating to the alleged infringement and provides to 3Dlabs all authority,
information and assistance necessary to settle, compromise or litigate such suit
or proceeding. The failure of Licensee to provide (i) prompt notice of any
communication asserting alleged infringement and (ii) the exclusive ability to
control the defense concerning such alleged infringement, shall relieve 3Dlabs
of its indemnity Obligations hereunder with respect to such asserted claim.
Following notice of a claim or of a threatened or actual suit, 3Dlabs may at its
expense, without obligation to do so, at its sole option, (i) procure for
Licensee the right to continue to use the Software Product as furnished, or (ii)
replace or modify the Software Product to make it non-infringing, or (iii) grant
Licensee a credit for the Software Product as depreciated and accept its return.
10.2 3Dlabs shall not be obligated to defend or be liable for
costs and damages if the infringement arises out of; (i) use or combination of
the Software Product with software or
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hardware not provided by 3Dlabs even if such combination conforms to the
specified or advertised use of the hardware products, (ii) use of other than the
latest release of Product made available to Buyer by Seller, if such
infringement would have been avoided by the use of such release of Product,
(iii) a modification of the Software Product made by or on behalf of Licensee,
(iv) use of the Software Product, after receiving notice, or having reason to
believe, that the Software Product may infringe a trademark, patent or copyright
of a third party.
10.3 THE FOREGOING STATES THE EXCLUSIVE REMEDY OF LICENSEE AND
THE ENTIRE LIABILITY OF 3DLABS WITH RESPECT TO INFRINGEMENT OF ANY TRADEMARK,
COPYRIGHT OR PATENT BY THE SOFTWARE PRODUCTS AND 3DLABS SHALL HAVE NO LIABILITY
WITH RESPECT TO ANY OTHER PROPRIETARY RIGHTS.
11. DISCLAIMER AND LIMITATION OF LIABILITY.
11.1 Disclaimer of Warranties. THE SOFTWARE PRODUCTS AND
DOCUMENTATION AND ANY AND ALL UPDATES AN D MODIFICATIONS TO THE SAME ARE
LICENSED "AS IS" AND THE WARRANTY PROVIDED IN SECTION 10 ABOVE IS THE SOLE AND
EXCLUSIVE WARRANTY OFFERED BY 3DLABS. 3DLABS DOES NOT REPRESENT OR WARRANT THAT
ALL ERRORS IN THE SOFTWARE PRODUCTS OR DOCUMENTATION WILL BE CORRECTED OR THAT
THE SOFTWARE PRODUCTS WILL RUN ERROR FREE. THERE ARE NO OTHER WARRANTIES
RESPECTING THE SOFTWARE PRODUCTS, DOCUMENTATION OR SERVICES PROVIDED UNDER THIS
AGREEMENT, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY
OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF 3DLABS
HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF 3DLABS IS AUTHORIZED TO ALTER OR
EXCEED THE WARRANTY OBLIGATIONS OF 3DLABS AS SET FORTH IN THIS AGREEMENT.
11.2 Limitation of Remedies and Liability. 3DLABS SHALL NOT BE
LIABLE TO LICENSEE OR TO ANY OF LICENSEE'S SUBLICENSEES, CUSTOMERS, OR END-USERS
FOR ANY LOSS OF PROFIT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE LICENSING OR USE OF THE
SOFTWARE PRODUCTS, DERIVATIVE SOFTWARE PRODUCTS OR DOCUMENTATION OR FOR ANY
ERROR OR DEFECT IN THE SOFTWARE PRODUCTS OR DOCUMENTATION. Notwithstanding
Section 10 (Limited Warranty, Infringement) the maximum liability of 3Dlabs
arising out of or in connection with license, use or other employment of any
Software Product delivered to Licensee under this Agreement, whether such
liability arises from any claim based on breach or repudiation of contract,
warranty, tort or otherwise, shall in no case exceed the actual price paid to
3Dlabs by Licensee for the Software Product whose license, use, or other
employment gives rise to the liability.
12. LICENSEE'S INDEMNIFICATION. Licensee shall indemnify 3Dlabs
and its suppliers and hold them harmless from any and all liabilities, claims,
costs, losses, and expenses including, but not limited to, reasonable attorneys'
fees and costs of suit incurred by 3Dlabs or its
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suppliers, or both, arising out of or relating to Licensee's misuse,
modification, upgrade, additions, alteration, sale, marketing, reproduction,
sublicensing or other distribution of the Software Products or Derivative
Software Products.
13. TERM OF AGREEMENT. This Agreement shall be effective on the
Effective Date and shall continue in effect until terminated in accordance with
the terms and conditions of Section 14.
14. DEFAULT AND TERMINATION.
14.1 Events of Default. Either party may terminate this
Agreement for material breach by providing thirty (30) days written notice to
the breaching party, unless the breach is corrected during such thirty (30) day
period. Material breach on the pan of Licensee shall include, but not be limited
to, filing a petition to declare such party insolvent or bankrupt which is not
dismissed within thirty (30) days; making an assignment or other arrangement for
the benefit of creditors, or being dissolved or liquidated.
14.2 Termination by 3Dlabs. 3Dlabs may terminate this
Agreement as to any Software Product, effective upon termination of 3Dlabs'
right with respect to such Software Product.
14.3 Obligations on Expiration or Termination. Upon
expiration or termination of this Agreement, all rights granted by this
Agreement shall revert to 3Dlabs and Licensee shall cease and desist all use of
the Software Products and Documentation. Licensee shall destroy or deliver to
3Dlabs within three (3) days of termination all full or partial copies of the
Software Products and Documentation in Licensee's possession or under its
control, other than those properly distributed by Licensee prior to termination,
and will warrant to 3Dlabs such destruction or delivery. Licensee's failure to
comply with the obligations of this Section 14.3 will constitute unauthorized
use of the Software Products and Documentation, entitling 3Dlabs to equitable
relief under Section 9.2 above.
14.4 No Liability. Neither party shall be liable to the
other for terminating this Agreement in accordance with its terms.
14.5 Survival. The following provisions of this Agreement
shall survive its termination or expiration: Sections 6 (License fees and
payment), 7 (Derivative Software Products), 8 (Protection of Software Products),
9 (Confidentiality), 10 (Limited Warranty, Infringement), 11 (Disclaimer and
Limitation of Liability), 12 (Licensee's Indemnity), and 14 through 20 and such
other provisions which, from their context in this Agreement, are intended to
survive its termination or expiration.
15. NOTICES. All notices, authorizations, and requests in connection
with this Agreement shall be deemed given (i) five days after being deposited in
the mail, postage prepaid, certified, or registered, return receipt requested,
or (ii) one day after being sent by overnight courier, charges prepaid, with
confirming fax; and addressed as first set forth above or to such
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other address as the party to receive the notice or request so designates by
written notice to the other.
16. NONASSIGNABILITY. Licensee shall not assign or transfer this
Agreement or all or any part of its rights hereunder, by operation of law or
otherwise, without the prior written consent of 3Dlabs. Any unauthorized
assignment or transfer shall be null and void and shall constitute a default,
entitling 3Dlabs to terminate this Agreement under Section 14 above. This
Agreement shall inure to the benefit of and be binding upon any permitted
successor or assign.
17. GOVERNING LAW JURISDICTION AND VENUE. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of California. The California state courts of Santa Xxxxx County,
California (or, if there is exclusive federal jurisdiction, the United States
District Court for the Northern District of California) shall have exclusive
jurisdiction and venue over any dispute arising out of or relating to this
Agreement, and Licensee hereby consents to the jurisdiction and venue or such
courts. Licensee shall file any action arising out of or relating to this
Agreement on the appropriate court within two (2) years from the date that such
cause of action accrues.
18. EXPORT REQUIREMENTS. The Software Products, Derivative Software
Products, Documentation and all related technical information or materials are
subject to export controls and are licensable under the U.S. Government export
regulations. Licensee agrees that unless prior authorization is obtained from
the Office of Export Licensing, it will not export, reexport, or transship,
directly or indirectly, to country groups Q, S, W, Y, or Z (as defined in the
Export Administration Regulations), or Afghanistan or the People's Republic of
China (excluding Taiwan) any of the technical data disclosed to Licensee or the
direct product of such technical data or otherwise contravene the Export
Administration Regulations or other United States laws and regulations in effect
from time to time. Licensee shall indemnify 3Dlabs against any loss related to
Licensee's failure to conform to these requirements.
19. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software Products and
Documentation are provided with Restricted Rights: use, duplication, or
disclosure by the Government is subject to restrictions as set forth in
subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software
clause at DFARS 252.2277013 or subparagraphs (c)(i) and (2) of the Commercial
Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.
20. INTERNATIONAL TRANSACTIONS. If the address of Licensee as set forth
on the first page of this Agreement is outside of the United States or if
Licensee is owned or controlled by an entity whose headquarters or principal
place of business is outside of the United States, then the following additional
provisions shall apply:
20.1 This Agreement is in the English language only, which
language shall be controlling in all respects. Any versions of this Agreement in
any other language shall be for accommodation only and shall not be binding upon
either party. All communications and Documentation to be furnished under this
Agreement shall be in the English language.
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20.2 The rights and obligations of each party of this
Agreement shall not be governed by the provisions of the U.N. Convention on
Contracts for the International Sale of Goods, but instead the provisions of
section 16 above shall apply.
21. SEVERABILITY. If any provision of this Agreement shall be
held by a court of competent jurisdiction to be illegal, invalid or
unenforceable, the remaining provisions shall remain in full force and effect.
22. MISCELLANEOUS.
22.1 This Agreement and its exhibits contain the entire
understanding and agreement between the parties respecting the subject matter
hereof and all prior quotations, invoices, negotiations, understandings,
representations and agreements of the parties, whether oral or written, with
respect to the subject of this Agreement are superseded in their entirety.
22.2 This Agreement may not be supplemented, modified,
amended, released or discharged except by an instrument in writing signed by
each party's duly authorized representative.
22.3 This Agreement shall supersede, replace and terminate in
its entirety any purchase order of License for Software Products or
Documentations and all such purchase orders are subject to acceptance by 3Dlabs.
In no event will any additional terms and conditions on a purchase order be
effective unless expressly accepted by 3Dlabs in writing.
22.4 If any action at law or in equity, including an action
for declaratory relief or injunctive relief is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees in addition to any other relief to which the party
may be entitled.
22.5 All captions and headings in this Agreement are for
purposes of convenience only and shall not affect the construction or
interpretation of any of its provisions.
22.6 Any waiver by either party of any default or breach
hereunder shall not constitute a waiver of any provision of this Agreement or of
any subsequent default or breach of the same or a different kind.
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IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute and deliver this Agreement as of the date first set
forth above.
SIGNED for and on behalf of SIGNED for and on behalf of
3Dlabs Inc. (Licensee) AccelGraphics, Inc.
Signed: /s/ Xxx Xxxxx Signed: /s/ XXXXX X. XXXX
------------------------- ---------------------------
Name: Xxx Xxxxx Name: Xxxxx X. Xxxx
------------------------- ---------------------------
Title: Vice President of Sales Title: CFO
------------------------- ---------------------------
Date: 8/1/95 Date: 7/31/95
------------------------- ---------------------------
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3DLABS SOFTWARE LICENSE AGREEMENT
EXHIBIT A
SOFTWARE PRODUCTS
The Software Products covered under this agreement include:
1. GLINT 3005X Windows NT 3.5 Driver Executable (This includes
the GLINT OpenGL Installable Client Driver)
2. GLINT 300SX Windows 3.x Driver Executable
3. GLINT 300SX Windows NT 3.5 Driver Source (N.B. This does NOT
include source of the OpenGL Installable Client Driver)
4. GLINT 300SX Windows 3.x Driver Source
5. OpenGL "Installable Client Driver" Source (Subject to license
providing copy of Level 11 OpenGL license to 3Dlabs.)
6. Win '95 Driver Source & Binary (when available)
7. Diagnostic Source & Binary for GLINT Reference Design
"Montserrat."
3Dlabs agrees to supply licensee binaries and source (if available) for
other API's that 3Dlabs enables for the GLINT silicon and makes generally
available to other board level customers. Third party licensing issues and
license and support costs associated with the supply of these APl's will remain
the sole responsibility of the licensee
3Dlabs agrees [* * * *].
3Dlabs agrees to treat licensee equally with its other board level
customers for supply of binaries and source (if available) for other API drivers
that 3Dlabs enables for the GLINT silicon and makes generally available to other
board level customers.
Third party licensing issues and license and support costs associated
with the supply of these third party API drivers will remain the sole
responsibility of the licensee.
Licensee is aware that 3Dlabs versions of these drivers are solely
designed to run on the then current 3Dlabs reference hardware.
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SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is made and entered into
as of the Effective Date, by and between 3Dlabs Inc. ("3Dlabs") with principal
offices at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000, XXX
and AccelGraphics, Inc. ("Licensee"), a company with principal offices at 0000
Xxxxxx Xx., Xxx Xxxx, Xxxxxxxxxx 00000.
RECITALS
A. 3Dlabs is the owner of, or has acquired rights to, the
Software Products and the Documentation (as defined below); and
B. 3Dlabs desires to grant to Licensee and Licensee desires to
obtain from 3Dlabs a non-exclusive license to use the Software Products and
Documentation on the terms and conditions of the Agreement;
NOW, THEREFORE, the parties to this Agreement agree as follows:
1. DEFINITIONS.
1.1 "Software Products" shall mean the computer programs
identified on Exhibit A to this Agreement that become subject to this Agreement
as set forth in Section 2 below, together with any subsequent error corrections
of updates supplied to Licensee by 3Dlabs pursuant to this Agreement.
1.2 "Derivative Software Products" shall mean computer
programs in machine readable binary or source code format developed or otherwise
acquired by Licensee which are a modification of enhancement to, derived from or
based upon Software Products.
1.3 "Documentation" shall mean all manuals, user
documentation, and other related materials pertaining to the Software Products
that 3Dlabs provides to Licensee for use in connection with the Software
Products.
1.4 "Effective Date" shall mean the last date set forth
opposite the parties signature lines.
1.5 "3Dlabs Chip Products" shall mean the 3Dlabs
graphics accelerator products listed on Exhibit A.
2. INCLUSION OF SOFTWARE PRODUCTS UNDER THE AGREEMENT.
2.1 Binary Format. Upon Licensee's purchase of any 3Dlabs Chip
Products, the executable binary format Software Products listed in Exhibit A for
such 3Dlabs Chip Products shall become "Software Products' for purposes of this
License Agreement.
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2.2 Source Code Format. Upon Licensee's purchase of any 3Dlabs
Chip Product, Licensee may place an order with 3Dlabs for one or more of the
source code Software Products listed in Exhibit A for such 3Dlabs Chip Product.
Licensee's order shall include payment of the license fee for such source code
as specified in Exhibit A. Upon 3Dlabs' acceptance of such order, such source
code shall become "Software Products" for purposes of this Agreement.
2.3 Modification of Software Products. The parties may amend
Exhibit A from time to time in writing. In addition (a) if 3Dlabs discontinues
any 3Dlabs Chip Product or Software Products listed on Exhibit A, then 3Dlabs
may modify Exhibit A to delete such Products, and (b) if Licensee purchases one
or more new 3Dlabs graphics accelerator products from 3Dlabs, then 3Dlabs may
modify Exhibit A to include such products as 3Dlabs Chip Products under Exhibit
A and to add software products designed for use with such 3Dlabs Chip Products
as "Software Products" under Exhibit A.
3. GRANT OF RIGHTS. From the Effective Date and as Software
Products are added to this Agreement under Section 2 above, until terminated in
accordance with the terms of this Agreement:
3.1 Binary Format. 3Dlabs hereby grants, and Licensee
hereby accepts, subject to the terms and conditions of this Agreement, a
non-exclusive license to reproduce, distribute, export, upgrade and sublicense
others to use the binary format Software Products (the "Binary Software
Products") and the related Documentation solely for use with 3Dlabs Chip
Products purchased by Licensee from 3Dlabs.
Notwithstanding Licensee's right to sublicense the
Binary Software Products to others for use with the 3Dlabs Chip Products,
Licensee shall have no right to sublicense or authorize parties to reproduce,
copy or otherwise manufacture the Binary Software Products, without 3Dlabs'
prior written permission. Licensee agrees not to attempt to modify, reverse
engineer, disassemble, decompile or trace the execution of the Binary Software
products, or of any portion thereof.
3.2 Source Code Format.
3.2.1 Drivers Source Code. 3Dlabs hereby grants
and Licensee hereby accepts a nonexclusive, nontransferable license to use and
modify the source code for drivers Software Products solely for the purpose of
developing Derivative Software Products for use with 3Dlabs Chip Products
purchased by Licensee from 3Dlabs. Licensee shall have no right to disclose,
sub-license, export, sell or otherwise distribute the Software Products,
Derivative Software Products or any portion thereof in source code format nor
shall Licensee authorize other parties to market, reproduce, have reproduced or
otherwise manufacture the Software products or Derivative Software Products in
source code format.
ANY LICENSE TO USE THE SOURCE CODE OF A DRIVERS SOFTWARE PRODUCT
CONTAINING MICROSOFT CORPORATION'S SOFTWARE IS SUBJECT TO LICENSEE HAVING
PHYSICAL POSSESSION OF AN ORIGINAL MICROSOFT
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SOFTWARE LICENSE FOR THE APPLICABLE MICROSOFT VERSION AT ALL TIMES DURING THE
USE THEREOF. LICENSEE SHALL HOLD 3DLABS HARMLESS FROM ANY LOSS, LIABILITY AND/OR
SETTLEMENT COSTS (INCLUDING REASONABLE ATTORNEYS' FEES) RESULTING FROM ANY CLAIM
AGAINST 3DLABS RELATED TO LICENSEE'S FAILURE TO HAVE SUCH A LICENSE DURING
LICENSEE'S USE OF SUCH SOFTWARE.
4. DELIVERY.
4.1 Binary Software Products. After the Effective Date, 3Dlabs
shall deliver to Licensee a master copy of the Binary Software Products licensed
under this Agreement for use with such 3Dlabs Chip Product, in object code
format and applicable Documentation. 3Dlabs shall deliver the foregoing in
electronic files or disk format, at 3Dlabs' option.
4.2 Source Software Products. After 3Dlabs' receipt of payment
and acceptance of Licensee's order for Software Products in source code format,
as set forth in Section 2 above, 3Dlabs shall deliver to licensee the source
code for the applicable Software Products, together with related Documentation
3Dlabs shall deliver foregoing m electronic files or disk format, at 3Dlabs'
option.
5. MODIFICATIONS.
5.1 Error Corrections and Updates. 3Dlabs will provide
Licensee with error corrections, bug fixes, patches or other updates to each
Software Product in object code format to the extent available in accordance
with 3Dlabs' release schedule for a period of ninety (90) days from the date of
3Dlabs' delivery of the original Software Product(s) under this Agreement.
5.2 Modifications by 3Dlabs. 3Dlabs shall be under no
obligation to make modifications that may be required for Licensee-specific
hardware, firmware, software, or other requirements. All error corrections, bug
fixes, patches, updates or other modifications to the Software Products or
Documentation made by 3Dlabs or its suppliers shall be the sole property of
3Dlabs or of its suppliers, or both.
5.3 Modifications by Licensee. Licensee shall promptly provide
to 3Dlabs all error corrections, bug fixes, patches, updates or other
modifications to the Software Products or Documentation made by Licensee or by
Licensee's sublicensees and hereby grants to 3Dlabs a limited worldwide,
non-royalty bearing license to use, modify, enhance, edit, reformat, rewrite,
copy, reissue and create derivative works of, sublicense and distribute such
modifications, provided that 3Dlabs shall sublicense such modifications under
terms that are no less restrictive than 3D/labs employs for its similar
products.
6. LICENSE FEES AND PAYMENT.
6.1 License Fee. In consideration of the license rights
granted in Section 3 above, Licensee shall pay the License fees or other
consideration for the Software Products and Documentation as set forth on
Exhibit A to this Agreement.
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6.2 Taxes and Other Charges. Licensee shall be responsible for
paying all (i) sales, use, excise, value-added or other tax or governmental
charges imposed on the licensing or use of the Software Products, Derivative
Software Products and Documentation (ii) freight, insurance and installation
charges, and (iii) import or export duties or like charges.
7. DERIVATIVE SOFTWARE PRODUCTS.
7.1 Title to Software Products Incorporated in Derivative
Software Products. Title to and ownership of any portion of the Software
Products incorporated into a Derivative Software Product shall at all times
remain with 3Dlabs or its supplier, or both, and Licensee shall not have any
title or ownership interest therein.
7.2 Maintenance of Derivative Software Products. 3Dlabs shall
not be required to maintain or otherwise repair any Derivative Software
Products. Any assistance in repairing errors or defects in the Derivative
Software Products which may be provided by 3Dlabs, in its sole discretion, shall
be subject to the terms of a separate agreement under which Licensee shall pay
3Dlabs in accordance with 3Dlabs' then-current charges for such services.
7.3 Products Developed by 3Dlabs. Nothing contained in this
Agreement shall be construed to limit 3Dlabs' rights to modify the Software
Products or to develop other Products which are similar to or offer the same or
similar improvements as Derivative Software Products developed by Licensee.
8. PROTECTION OF SOFTWARE PRODUCTS.
8.1 Proprietary Notices. Licensee agrees not to remove,
obliterate, or cancel from view any copyright, trademark, confidentiality or
other proprietary notice or xxxx appearing on any of the Software Products or on
output generated by the Software Products and to reproduce and include the same
on each copy of the Software Products and Derivative Software Products.
8.2 Ownership and Protection of Software Products. Licensee
acknowledges that all copies of the Software Products in any form provided by
3Dlabs or made by Licensee are the sole property of 3Dlabs or its suppliers, or
both. Licensee shall not have any right, title or interest in or to any Software
Products, or copies thereof except as expressly provided in this Agreement, and
further shall secure and protect all Software Products, Derivative Software
Products and Documentation consistent with maintenance of 3Dlabs' proprietary
rights therein.
8.3 Copies. Licensee shall not copy the source code of the
Software Products, except that Licensee may make one copy of the source code
solely for archival or backup purpose and may make copies of the source code
solely for use by Licensee's employees who have a need to use such source code
for the purposes authorized under this agreement. All source code of the
Software Products shall remain on Licensee's business premises.
8.4 Xxxx Ownership. Nothing contained in this Agreement shall
be construed as conferring any license or right with respect to any trademark,
trade name, brand name, or the corporate name of 3Dlabs, or any of 3Dlabs'
suppliers.
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9. CONFIDENTIALITY.
9.1 Maintenance of Confidential Information. Licensee
acknowledges that the Software Products and Documentation contain valuable
proprietary information and trade secrets of 3Dlabs or its suppliers, or both,
and Licensee will not release, disclose or otherwise permit access to such
confidential information or use the information in such a way that other parties
can gain access to such information. In particular, Licensee shall not disclose
or cause to be disclosed the Software Products code, documentation, or other
information contained in the source code to any third party without the prior
written consent of 3Dlabs and, where applicable, 3Dlabs' suppliers. 3Dlabs and
Licensee agree to xxxx written materials as "Confidential" if they are to be
treated as confidential in nature. Oral communications that are confidential in
nature will be identified as such before, during or immediately after the
communication. Licensee warrants that all those individuals having access to the
Software Products under this Agreement will observe and perform the obligations
in this Agreement with respect to confidential information.
9.2 Injunctive Relief. Licensee acknowledges that the
unauthorized use, transfer, sublicensing or disclosure of the Software Products,
Derivative Software Products, Documentation or copies thereof may cause
irreparable injury to 3Dlabs, and under such circumstances 3Dlabs shall be
entitled to equitable relief, including, but not limited to, preliminary and
permanent injunctive relief, and Licensee waives any requirements that a bond be
posted.
10. LIMITED WARRANTY; INFRINGEMENT. 3Dlabs warrants to Licensee
that as of the date of this Agreement it has no knowledge that the Software
Products or Documentation infringe or otherwise make unauthorized use of any
copyright, trademark, trade secret or proprietary right of any party. If a court
of competent jurisdiction rules that 3Dlabs has infringed upon the copyright,
trademark, trade secret or proprietary right of a third party, 3Dlabs shall, at
its option, obtain a license from that third party, modify the infringing
Software Product from Licensee and refund to Licensee all amounts that Licensee
paid to 3Dlabs for the Software Products. The remedy for infringement is
Licensee's exclusive remedy, and Licensee hereby waives all other remedies,
rights, causes of actions and claims against 3Dlabs and its suppliers, whether
in contract, tort, by statute, or otherwise, as well as any and all damages for
infringement and other indemnity, whether direct, consequential or otherwise.
THE WARRANTY AND INDEMNITY IN THIS SECTION 10 DOES NOT APPLY TO USE OF SOFTWARE
PRODUCTS IN COMBINATION WITH ANY OTHER PRODUCTS.
11. DISCLAIMER AND LIMITATION OF LIABILITY.
11.1 Disclaimer of Warranties. THE SOFTWARE PRODUCTS AND
DOCUMENTATION AND ANY AND ALL UPDATES AN D MODIFICATIONS TO THE SAME ARE
LICENSED "AS IS" AND THE WARRANTY PROVIDED IN SECTION 10 ABOVE IS THE SOLE AND
EXCLUSIVE WARRANTY OFFERED BY 3DLABS. 3DLABS DOES NOT REPRESENT OR WARRANT THAT
ALL ERRORS IN THE SOFTWARE PRODUCTS OR DOCUMENTATION WILL BE CORRECTED OR THAT
THE SOFTWARE PRODUCTS WILL RUN ERROR FREE. THERE ARE NO OTHER WARRANTIES
RESPECTING THE SOFTWARE PRODUCTS, DOCUMENTATION OR SERVICES PROVIDED UNDER THIS
AGREEMENT, EITHER EXPRESS OR IMPLIED, INCLUDING
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BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE, EVEN IF 3DLABS HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT
OF 3DLABS IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF 3DLABS AS
SET FORTH IN THIS AGREEMENT.
11.2 Limitation of Remedies and Liability. 3DLABS SHALL NOT BE
LIABLE TO LICENSEE OR TO ANY OF LICENSEE'S SUBLICENSEES, CUSTOMERS, OR END-USERS
FOR ANY LOSS OF PROFIT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE LICENSING OR USE OF THE
SOFTWARE PRODUCTS, DERIVATIVE SOFTWARE PRODUCTS OR DOCUMENTATION OR FOR ANY
ERROR OR DEFECT IN THE SOFTWARE PRODUCTS OR DOCUMENTATION. Notwithstanding
Section 10 (Limited Warranty, Infringement) the maximum liability of 3Dlabs
arising out of or in connection with license, use or other employment of any
Software Product delivered to Licensee under this Agreement, whether such
liability arises from any claim based on breach or repudiation of contract,
warranty, tort or otherwise, shall in no case exceed the actual price paid to
3Dlabs by Licensee for the Software Product whose license, use, or other
employment gives rise to the liability.
12. LICENSEE'S INDEMNIFICATION. Licensee shall indemnify 3Dlabs
and its suppliers and hold them harmless from any and all liabilities, claims,
costs, losses, and expenses including, but not limited to, reasonable attorneys'
fees and costs of suit incurred by 3Dlabs or its suppliers, or both, arising out
of or relating to Licensee's misuse, modification, upgrade, additions,
alteration, sale, marketing, reproduction, sublicensing or other distribution of
the Software Products or Derivative Software Products.
13. TERM OF AGREEMENT. This Agreement shall be effective on the
Effective Date and shall continue in effect until terminated in accordance with
the terms and conditions of Section 14.
14. DEFAULT AND TERMINATION.
14.1 Events of Default. Either party may terminate this
Agreement for material breach by providing thirty (30) days written notice to
the breaching party, unless the breach is corrected during such thirty (30) day
period. Material breach on the pan of Licensee shall include, but not be limited
to, filing a petition to declare such party insolvent or bankrupt which is not
dismissed within thirty (30) days; making an assignment or other arrangement for
the benefit of creditors, or being dissolved or liquidated.
14.2 Termination by 3Dlabs. 3Dlabs may terminate this
Agreement as to any Software Product, effective upon termination of 3Dlabs'
right with respect to such Software Product.
14.3 Obligations on Expiration or Termination. Upon expiration
or termination of this Agreement, all rights granted by this Agreement shall
revert to 3Dlabs and Licensee shall cease and desist all use of the Software
Products and Documentation. Licensee shall destroy or
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deliver to 3Dlabs within three (3) days of termination all full or partial
copies of the Software Products and Documentation in Licensee's possession or
under its control, other than those properly distributed by Licensee prior to
termination, and will warrant to 3Dlabs such destruction or delivery. Licensee's
failure to comply with the obligations of this Section 14.3 will constitute
unauthorized use of the Software Products and Documentation, entitling to
3Dlabsequitable relief under Section 9.2 above.
14.4 No Liability. Neither party shall be liable to the
other for terminating this Agreement in accordance with its terms.
14.5 Survival. The following provisions of this Agreement
shall survive its termination or expiration: Sections 6 (License fees and
payment), 7 (Derivative Software Products), 8 (Protection of Software Products),
9 (Confidentiality), 10 (Limited Warranty, Infringement), 11 (Disclaimer and
Limitation of Liability), 12 (Licensee's Indemnity), and 14 through 20 and such
other provisions which, from their context in this Agreement, are intended to
survive its termination or expiration.
15. NOTICES. All notices, authorizations, and requests in connection
with this Agreement shall be deemed given (i) five days after being deposited in
the mail, postage prepaid, certified, or registered, return receipt requested,
or (ii) one day after being sent by overnight courier, charges prepaid, with
confirming fax; and addressed as first set forth above or to such other address
as the party to receive the notice or request so designates by written notice to
the other.
16. NONASSIGNABILITY. Licensee shall not assign or transfer this
Agreement or all or any part of its rights hereunder, by operation of law or
otherwise, without the prior written consent of 3Dlabs. Any unauthorized
assignment or transfer shall be null and void and shall constitute a default,
entitling 3Dlabs to terminate this Agreement under Section 14 above. This
Agreement shall inure to the benefit of and be binding upon any permitted
successor or assign.
17. GOVERNING LAW JURISDICTION AND VENUE. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of California. The California state courts of Santa Xxxxx County,
California (or, if there is exclusive federal jurisdiction, the United States
District Court for the Northern District of California) shall have exclusive
jurisdiction and venue over any dispute arising out of or relating to this
Agreement, and Licensee hereby consents to the jurisdiction and venue or such
courts. Licensee shall file any action arising out of or relating to this
Agreement on the appropriate court within two (2) years from the date that such
cause of action accrues.
18. EXPORT REQUIREMENTS. The Software Products, Derivative Software
Products, Documentation and all related technical information or materials are
subject to export controls and are licensable under the U.S. Government export
regulations. Licensee agrees that unless prior authorization is obtained from
the Office of Export Licensing, it will not export, reexport, or transship,
directly or indirectly, to country groups Q, S, W, Y, or Z (as defined in the
Export Administration Regulations), or Afghanistan or the People's Republic of
China (excluding Taiwan) any of the technical data disclosed to Licensee or the
direct product of such technical
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data or otherwise contravene the Export Administration Regulations or other
United States laws and regulations in effect from time to time. Licensee shall
indemnify 3Dlabs against any loss related to Licensee's failure to conform to
these requirements.
19. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software Products and
Documentation are provided with Restricted Rights: use, duplication, or
disclosure by the Government is subject to restrictions as set forth in
subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software
clause at DFARS 252.2277013 or subparagraphs (c)(i) and (2) of the Commercial
Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.
20. INTERNATIONAL TRANSACTIONS. If the address of Licensee as set
forth on the first page of this Agreement is outside of the United States or if
Licensee is owned or controlled by an entity whose headquarters or principal
place of business is outside of the United States, then the following additional
provisions shall apply:
20.1 This Agreement is in the English language only, which
language shall be controlling in all respects. Any versions of this Agreement in
any other language shall be for accommodation only and shall not be binding upon
either party. All communications and Documentation to be furnished under this
Agreement shall be in the English language.
20.2 The rights and obligations of each party of this
Agreement shall not be governed by the provisions of the U.N. Convention on
Contracts for the International Sale of Goods, but instead the provisions of
section 16 above shall apply.
21. SEVERABILITY. If any provision of this Agreement shall be
held by a court of competent jurisdiction to be illegal, invalid or
unenforceable, the remaining provisions shall remain in full force and effect.
22. MISCELLANEOUS.
22.1 This Agreement and its exhibits contain the entire
understanding and agreement between the parties respecting the subject matter
hereof and all prior quotations, invoices, negotiations, understandings,
representations and agreements of the parties, whether oral or written, with
respect to the subject of this Agreement are superseded in their entirety.
22.2 This Agreement may not be supplemented, modified,
amended, released or discharged except by an instrument in writing signed by
each party's duly authorized representative.
22.3 This Agreement shall supersede, replace and terminate in
its entirety any purchase order of License for Software Products or
Documentations and all such purchase orders are subject to acceptance by 3Dlabs.
In no event will any additional terms and conditions on a purchase order be
effective unless expressly accepted by 3Dlabs in writing.
22.4 If any action at law or in equity, including an action
for declaratory relief or injunctive relief is brought to enforce or interpret
the provisions of this Agreement, the prevailing
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party shall be entitled to reasonable attorneys' fees in addition to any other
relief to which the party may be entitled.
22.5 All captions and headings in this Agreement are for
purposes of convenience only and shall not affect the construction or
interpretation of any of its provisions.
22.6 Any waiver by either party of any default or breach
hereunder shall not constitute a waiver of any provision of this Agreement or of
any subsequent default or breach of the same or a different kind.
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IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute and deliver this Agreement as of the date first set
forth above.
SIGNED for and on behalf of SIGNED for and on behalf of
3Dlabs Inc. (Licensee) AccelGraphics, Inc.
Signed: Signed: /s/ Xxxxx Xxxxxxx
-------------------- ------------------------
Name: Name: Xxxxx Xxxxxxx
-------------------- ------------------------
Title: Title: VP, Engineering
-------------------- ------------------------
Date: Date: 1/23/96
-------------------- ------------------------
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3DLABS SOFTWARE LICENSE AGREEMENT
EXHIBIT A
SOFTWARE PRODUCTS
The Software Products covered under this agreement include:
1. GLINT Xxxxx Driver for Windows NT Binaries
2. GLINT Xxxxx Driver for Windows NT Source
[* * * * * * *].
As per Section 3.2.1 Licensee warrants that the Software Products source code
will be used solely for the purpose of developing Derivative Software Products
for use with 3Dlabs Chip Products purchased by Licensee from 3Dlabs.
Licensee agrees that any Software Products labeled or described by 3Dlabs as
"Beta" or Derivative Software Products derived from such Software Products will
be clearly labeled and described as "Beta" products when distributed by the
Licensee unless the Licensee has received written dispensation from 3Dlabs.
SIGNED for and on behalf of SIGNED for and on behalf of
3Dlabs Inc. (Licensee) AccelGraphics, Inc.
Signed: Signed:
-------------------- ------------------------
Name: Name:
-------------------- ------------------------
Title: Title:
-------------------- ------------------------
Date: Date:
-------------------- ------------------------
23
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is made and entered into
as of the Effective Date, by and between 3Dlabs Inc. ("3Dlabs") with principal
offices at 000 Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, XX 00000, XXX and
AccelGraphics, Inc. ("Licensee"), a company with principal offices at 0000
Xxxxxx Xx., Xxx Xxxx, Xxxxxxxxxx 00000.
RECITALS
A. 3Dlabs is the owner of, or has acquired rights to, the
Software Products and the Documentation (as defined below); and
B. 3Dlabs desires to grant to Licensee and Licensee desires to
obtain from 3Dlabs a non-exclusive license to use the Software Products and
Documentation on the terms and conditions of the Agreement;
NOW, THEREFORE, the parties to this Agreement agree as follows:
1. DEFINITIONS.
1.1 "Software Products" shall mean the computer programs
identified on Exhibit A to this Agreement that become subject to this Agreement
as set forth in Section 2 below, together with any subsequent error corrections
of updates supplied to Licensee by 3Dlabs pursuant to this Agreement.
1.2 "Derivative Software Products" shall mean computer
programs in machine readable binary or source code format developed or otherwise
acquired by Licensee which are a modification of enhancement to, derived from or
based upon Software Products.
1.3 "Documentation" shall mean all manuals, user
documentation, and other related materials pertaining to the Software Products
that 3Dlabs provides to Licensee for use in connection with the Software
Products.
1.4 "Effective Date" shall mean the last date set forth
opposite the parties signature lines.
1.5 "3Dlabs Chip Products" shall mean the 3Dlabs graphics
accelerator products listed on Exhibit A.
1.6 "Software Developers" shall mean a company or person
engaged in development of software for use with 3Dlabs Chip Products.
24
2. INCLUSION OF SOFTWARE PRODUCTS UNDER THE AGREEMENT.
2.1 Binary Format. Upon Licensee's purchase of any 3Dlabs
Chip Products, the executable binary format Software Products listed in Exhibit
A for such 3Dlabs Chip Products shall become "Software Products' for purposes of
this License Agreement.
2.2 Source Code Format. Upon Licensee's purchase of any
3Dlabs Chip Product, Licensee may place an order with 3Dlabs for one or more of
the source code Software Products listed in Exhibit A for such 3Dlabs Chip
Product. Licensee's order shall include payment of the license fee for such
source code as specified in Exhibit A. Upon 3Dlabs' acceptance of such order,
such source code shall become "Software Products" for purposes of this
Agreement.
2.3 Modification of Software Products. The parties may
amend Exhibit A from time to time in writing. In addition (a) if 3Dlabs
discontinues any 3Dlabs Chip Product or Software Products listed on Exhibit A,
then 3Dlabs may modify Exhibit A to delete such Products, and (b) if Licensee
purchases one or more new 3Dlabs graphics accelerator products from 3Dlabs, then
3Dlabs may modify Exhibit A to include such products as 3Dlabs Chip Products
under Exhibit A and to add software products designed for use with such 3Dlabs
Chip Products as "Software Products" under Exhibit A.
3. GRANT OF RIGHTS. From the Effective Date and as Software
Products are added to this Agreement under Section 2 above, until terminated in
accordance with the terms of this Agreement:
3.1 Binary Format. 3Dlabs hereby grants, and Licensee
hereby accepts, subject to the terms and conditions of this Agreement, a
non-exclusive license to reproduce, distribute, export, upgrade and sublicense
others to use the binary format Software Products (the "Binary Software
Products") and the related Documentation solely for use with 3Dlabs Chip
Products purchased by Licensee from 3Dlabs.
Licensee agrees not to attempt to modify, reverse
engineer, disassemble, decompile or trace the execution of the Binary Software
products, or of any portion thereof.
3.2 Source Code Format.
3.2.1 Source Code. 3Dlabs hereby grants and
Licensee hereby accepts a non-exclusive, nontransferable license to use and
modify the source code for the Software Products solely for the purpose of
developing Derivative Software Products for use with 3Dlabs Chip Products
purchased by Licensee from 3Dlabs.
Licensee hereby represents, covenants and warrants
that it will only distribute source code for the Software Products to the
following third parties:
(i) Software Developers who have entered into a
written agreement which restricts the Software Developers from distributing
source code for the Software Products to any third party. Exhibit B contains a
sample software license agreement.
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4. DELIVERY.
4.1 Binary Software Products. After the Effective Date
3Dlabs shall deliver to Licensee a master copy of the Binary Software Products
licensed under this Agreement for use with such 3Dlabs Chip Product, in object
code format and applicable Documentation. 3Dlabs shall deliver the foregoing in
electronic files or disk format, at 3Dlabs' option.
4.2 Source Software Products. After 3Dlabs' receipt of
payment and acceptance of Licensee's order for Software Products in source code
format, as set forth in Section 2 above, 3Dlabs shall deliver to licensee the
source code for the applicable Software Products, together with related
Documentation. 3Dlabs shall deliver foregoing in electronic files or disk
format, at 3Dlabs' option.
5. MODIFICATIONS.
5.1 Modifications by 3Dlabs. 3Dlabs shall be under no
obligation to make modifications that may be required for Licensee-specific
hardware, firmware, software, or other requirements. All error corrections, bug
fixes, patches, updates or other modifications to the Software Products or
Documentation made by 3Dlabs or its suppliers shall be the sole property of
3Dlabs or of its suppliers, or both.
5.2 Modifications by Licensee. All error corrections, bug
fixes, patches, updates or other modifications to the Software Products or
Documentation made by Licensee or by Licensee's sublicensees shall be the sole
property and responsibility of Licensee. 3Dlabs shall not be required to
maintain or otherwise repair any Software Products that Licensee has modified or
caused to be modified.
6. LICENSE FEES AND PAYMENT.
6.1 License Fee. In consideration of the license rights
granted in Section 3 above, Licensee shall pay the License fees or other
consideration for the Software Products and Documentation as set forth on
Exhibit A to this Agreement.
6.2 Taxes and Other Charges. Licensee shall be
responsible for paying all (i) sales, use, excise, value-added or other tax or
governmental charges imposed on the licensing or use of the Software Products,
Derivative Software Products and Documentation (ii) freight, insurance and
installation charges, and (iii) import or export duties or like charges.
7. DERIVATIVE SOFTWARE PRODUCTS.
7.1 Title to Software Products Incorporated in Derivative
Software Products. Title to and ownership of any portion of the Software
Products incorporated into a Derivative Software Product shall at all times
remain with 3Dlabs or its supplier, or both, and Licensee shall not have any
title or ownership interest therein.
7.2 Title to Derivative Software Products. Title to and
ownership of any portion of a Derivative Software product created by Licensee
and now owned by 3Dlabs or its
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supplier, or both, pursuant to section 7.1 above, shall be held by Licensee. Any
and all upgrades, additions, adaptations, or modifications to the Software
Products made by Licensee will remain the sole property and responsibility of
Licensee.
7.3 3Dlabs' Use of Derivative Software Products. Licensee
agrees to provide binary copies of any Derivative Software Products to 3Dlabs
free of charge. Licensee hereby grants 3Dlabs a non-royalty bearing, worldwide
license to use the Derivative Software Products for demonstrations and
evaluations.
7.4 Maintenance of Derivative Software Products. 3Dlabs
shall not be required to maintain or otherwise repair any Derivative Software
Products.
7.5 Products Developed by 3Dlabs. Nothing contained in
this Agreement shall be construed to limit 3Dlabs' rights to modify the Software
Products or to develop other Products which are similar to or offer the same or
similar improvements as Derivative Software Products developed by Licensee,
subject to Licensee's rights.
8. PROTECTION OF SOFTWARE PRODUCTS.
8.1 Proprietary Notices. Licensee agrees not to remove,
obliterate, or cancel from view any copyright, trademark, confidentiality or
other proprietary notice or xxxx appearing on any of the Software Products or on
output generated by the Software Products and to reproduce and include the same
on each copy of the Software Products and Derivative Software Products.
8.2 Ownership and Protection of Software Products.
Licensee acknowledges that all copies of the Software Products in any form
provided by 3Dlabs or made by Licensee are the sole property of 3Dlabs or its
suppliers, or both. Licensee shall not have any right, title or interest in or
to any Software Products, or copies thereof except as expressly provided in this
Agreement, and further shall secure and protect all Software Products,
Derivative Software Products and Documentation consistent with maintenance of
3Dlabs' proprietary rights therein.
8.3 Xxxx Ownership. Nothing contained in this Agreement
shall be construed as conferring any license or right with respect to any
trademark, trade name, brand name, or the corporate name of 3Dlabs, or any of
3Dlabs' suppliers.
9. CONFIDENTIALITY.
9.1 Maintenance of Confidential Information. Licensee
acknowledges that the Software Products and Documentation contain valuable
proprietary information and trade secrets of 3Dlabs or its suppliers, or both,
and Licensee will not release, disclose or otherwise permit access to such
confidential information or use the information in such a way that other parties
can gain access to such information. In particular, Licensee shall only disclose
or cause to be disclosed the Software Products code, documentation, or other
information contained in the source code to third parties as described in
paragraph 3.2.1. 3Dlabs and Licensee agree to xxxx written materials as
"Confidential" if they are to be treated as confidential in nature. Oral
communications that are confidential in nature will be identified as such
before, during or
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immediately after the communication. Licensee warrants that all those
individuals having access to the Software Products under this Agreement will
observe and perform the obligations in this Agreement with respect to
confidential information.
9.2 Injunctive Relief. Licensee acknowledges that the
unauthorized use, transfer, sublicensing or disclosure of the Software Products,
Derivative Software Products, Documentation or copies thereof may cause
irreparable injury to 3Dlabs, and under such circumstances 3Dlabs shall be
entitled to equitable relief, including, but not limited to, preliminary and
permanent injunctive relief, and Licensee waives any requirements that a bond be
posted.
10. LIMITED WARRANTY; INFRINGEMENT. 3Dlabs warrants to licensee
that as of the date of this Agreement it has no knowledge that the Software
Products or Documentation infringe or otherwise make unauthorized use of any
copyright, trademark, trade secret or proprietary right of any party. If a court
of competent jurisdiction rules that 3Dlabs has infringed upon the copyright,
trademark, trade secret or proprietary right of a third party, 3Dlabs shall, at
its option, obtain a license from that third party, modify the infringing
Software Product from Licensee and refund to Licensee all amounts that Licensee
paid to 3Dlabs for the Software Products. The remedy for infringement is
Licensee's exclusive remedy, and Licensee hereby waives all other remedies,
rights, causes of actions and claims against 3Dlabs and its suppliers, whether
in contract, tort, by statute, or otherwise, as well as any and all damages for
infringement and other indemnity, whether direct, consequential or otherwise.
THE WARRANTY AND INDEMNITY IN THIS SECTION 10 DOES NOT APPLY TO USE OF SOFTWARE
PRODUCTS IN COMBINATION WITH ANY OTHER PRODUCTS.
11. DISCLAIMER AND LIMITATION OF LIABILITY.
11.1 Disclaimer of Warranties. THE SOFTWARE PRODUCTS AND
DOCUMENTATION AND ANY AND ALL UPDATES AND MODIFICATIONS TO THE SAME ARE LICENSED
"AS IS" AND THE WARRANTY PROVIDED IN SECTION 10 ABOVE IS THE SOLE AND EXCLUSIVE
WARRANTY OFFERED BY 3DLABS. 3DLABS DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS
IN THE SOFTWARE PRODUCTS OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SOFTWARE
PRODUCTS WILL RUN ERROR FREE. THERE ARE NO OTHER WARRANTIES RESPECTING THE
SOFTWARE PRODUCTS, DOCUMENTATION OR SERVICES PROVIDED UNDER THIS AGREEMENT,
EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF 3DLABS HAS BEEN
INFORMED OF SUCH PURPOSE. NO AGENT OF 3DLABS IS AUTHORIZED TO ALTER OR EXCEED
THE WARRANTY OBLIGATIONS OF 3DLABS AS SET FORTH IN THIS AGREEMENT.
11.2 Limitation of Remedies and Liability. 3DLABS SHALL
NOT BE LIABLE TO LICENSEE OR TO ANY OF LICENSEE'S SUBLICENSEES, CUSTOMERS, OR
END-USERS FOR ANY LOSS OF PROFIT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE LICENSING OR USE OF THE
SOFTWARE PRODUCTS, DERIVATIVE SOFTWARE PRODUCTS OR DOCUMENTATION OR FOR ANY
ERROR OR DEFECT IN THE
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SOFTWARE PRODUCTS OR DOCUMENTATION. The maximum liability of 3Dlabs arising out
of or in connection with license, use or other employment of any Software
Product delivered to Licensee under this Agreement, whether such liability
arises from any claim based on breach or repudiation of contract, warranty, tort
or otherwise, shall in no case exceed the actual price paid to 3Dlabs by
Licensee for the Software Product whose license, use or other employment gives
rise to the liability.
12. LICENSEE'S INDEMNIFICATION. Licensee shall indemnify 3Dlabs
and its suppliers and hold them harmless from any and all liabilities, claims,
costs, losses, and expenses including, but not limited to, reasonable attorneys'
fees and costs of suit incurred by 3Dlabs or its suppliers, or both, arising out
of or relating to Licensee's misuse, modification, upgrade, additions,
alteration, sale, marketing, reproduction, sublicensing or other distribution of
the Software Products or Derivative Software Products.
13. TERM OF AGREEMENT. This Agreement shall be effective on the
Effective Date and shall continue in effect until terminated in accordance with
the terms and conditions of Section 14.
14. DEFAULT AND TERMINATION.
14.1 Events of Default. Either party may terminate this
Agreement for material breach by providing thirty (30) days written notice to
the breaching party, unless the breach is corrected during such thirty (30) day
period. Material breach on the part of Licensee shall include, but not be
limited to, filing a petition to declare such party insolvent or bankrupt which
is not dismissed within thirty (30) days; making an assignment or other
arrangement for the benefit of creditors, or being dissolved or liquidated.
14.2 Termination by 3Dlabs. 3Dlabs may terminate this
Agreement as to any Software Product, effective upon termination of 3Dlabs'
right with respect to such Software Product.
14.3 Obligations on Expiration or Termination. Upon
expiration or termination of this Agreement, all rights granted by this
Agreement shall revert to 3Dlabs and Licensee shall cease and desist all use of
the Software Products and Documentation. Licensee shall destroy or deliver to
3Dlabs within thirty (30) days of termination all full or partial copies of the
Software Products and Documentation in Licensee's possession or under its
control, other than those properly distributed by Licensee prior to termination,
and will warrant to 3Dlabs such destruction or delivery. Licensee's failure to
comply with the obligations of this Section 14.3 will constitute unauthorized
use of the Software Products and Documentation, entitling to 3Dlabsequitable
relief under Section 9.2 above.
14.4 No Liability. Neither party shall be liable to the
other for terminating this Agreement in accordance with its terms.
14.5 Survival. The following provisions of this Agreement
shall survive its termination or expiration: Sections 6 (License Fees and
Payment), 7 (Derivative Software
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Products), 8 (Protection of Software Products), 9 (Confidentiality), 11
(Disclaimer and Limitation of Liability), 12 (Licensee's Indemnity), and 14
through 20 and such other provisions which, from their context in this
Agreement, are intended to survive its termination or expiration.
15. NOTICES. All notices, authorizations, and requests in connection
with this Agreement shall be deemed given (i) five days after being deposited in
the mail, postage prepaid, certified, or registered, return receipt requested,
or (ii) one day after being sent by overnight courier, charges prepaid, with
confirming fax; and addressed as first set forth above or to such other address
as the party to receive the notice or request so designates by written notice to
the other.
16. NONASSIGNABILITY. Licensee shall not assign or transfer this
Agreement or all or any part of its rights hereunder, by operation of law or
otherwise, without the prior written consent of 3Dlabs. Any unauthorized
assignment or transfer shall be null and void and shall constitute a default,
entitling 3Dlabs to terminate this Agreement under Section 14 above. This
Agreement shall inure to the benefit of and be binding upon any permitted
successor or assign.
17. GOVERNING LAW JURISDICTION AND VENUE. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of California. The California state courts of Santa Xxxxx County,
California (or, if there is exclusive federal jurisdiction, the United States
District Court for the Northern District of California) shall have exclusive
jurisdiction and venue over any dispute arising out of or relating to this
Agreement, and Licensee hereby consents to the jurisdiction and venue or such
courts. Licensee shall file any action arising out of or relating to this
Agreement on the appropriate court within one (1) year from the date that such
cause of action accrues.
18. EXPORT REQUIREMENTS. The Software Products, Derivative Software
Products, Documentation and all related technical information or materials are
subject to export controls and are licensable under the U.S. Government export
regulations. Licensee will not export, reexport, divert, transfer or disclose,
directly or indirectly the Software Products, Derivative Software Products,
Documentation and any related technical information or materials without
complying strictly with all legal requirements including without limitation
obtaining the prior approval of the U.S. Department of Commerce. Licensee will
execute and deliver to 3Dlabs such "Letters of Assurance" as may be required
under applicable export regulations. Licensee shall indemnify 3Dlabs against any
loss related to Licensee's failure to conform to these requirements.
19. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software Products and
Documentation are provided with Restricted Rights: use, duplication, or
disclosure by the Government is subject to restrictions as set forth in
subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software
clause at DEARS 252.2277013 or subparagraphs (c)(i) and (2) of the Commercial
Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.
20. INTERNATIONAL TRANSACTIONS. If the address of Licensee as set forth
on the first page of this Agreement is outside of the United States or if
Licensee is owned or
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controlled by an entity whose headquarters or principal place of business is
outside of the United States, then the following additional provisions shall
apply:
20.1 This Agreement is in the English language only, which
language shall be controlling in all respects. Any versions of this Agreement in
any other language shall be for accommodation only and shall not be binding upon
either party. All communications and Documentation to be furnished under this
Agreement shall be in the English language.
20.2 The rights and obligations of each party of this
Agreement shall not be governed by the provisions of the U.N. Convention on
Contracts for the International Sale of Goods, but instead the provisions of
section 16 above shall apply.
21. SEVERABILITY. If any provision of this Agreement shall be
held by a court of competent jurisdiction to be illegal, invalid or
unenforceable, the remaining provisions shall remain in full force and effect.
22. MISCELLANEOUS.
22.1 This Agreement and its exhibits contain the entire
understanding and agreement between the parties respecting the subject matter
hereof and all prior quotations, invoices, negotiations, understandings,
representations and agreements of the parties, whether oral or written, with
respect to the subject of this Agreement are superseded in their entirety.
22.2 This Agreement may not be supplemented, modified,
amended, released or discharged except by an instrument in writing signed by
each party's duly authorized representative.
22.3 This Agreement shall supersede, replace and terminate
in its entirety any purchase order of License for Software Products or
Documentations and all such purchase orders are subject to acceptance by 3Dlabs.
In no event will any additional terms and conditions on a purchase order be
effective unless expressly accepted by 3Dlabs in writing.
22.4 If any action at law or in equity, including an
action for declaratory relief or injunctive relief is brought to enforce or
interpret the provisions of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees in addition to any other relief to which
the party may be entitled.
22.5 All captions and headings in this Agreement are for
purposes of convenience only and shall not affect the construction or
interpretation of any of its provisions.
22.6 Any waiver by either party of any default or breach
hereunder shall not constitute a waiver of any provision of this Agreement or of
any subsequent default or breach of the same or a different kind.
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IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute and deliver this Agreement as of the date first set
forth above.
SIGNED for and on behalf of SIGNED for and on behalf of
3Dlabs Inc. (Licensee) AccelGraphics, Inc.
Signed: /s/ Xxx Xxxxx Signed: /s/ Xxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxx Xxxxx Name: Xxxxx X. Xxxx
--------------------------- ---------------------------
Title: Vice President of Sales Title: CFO
--------------------------- ---------------------------
Date: 7/3/96 Date: 7/3/96
--------------------------- ---------------------------
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3DLABS SOFTWARE LICENSE AGREEMENT
EXHIBIT A
SOFTWARE PRODUCTS
The 3Dlabs graphics accelerators products include:
1. GLINT 300SX
2. GLINT Delta
3. GLINT 500 TX
4. PERMEDIA
The Software Products covered under this agreement include:
1. OpenGL demonstration programs (Includes the Rollercoaster,
Chick Xxxxx and X29 programs)
2. OpenGL demonstration programs source (Includes the
Rollercoaster, Chick Berrry and X29 programs)
[* * * * * * *].
