Phoenix Technologies Ltd./Confidential Phoenix Agreement Number 14820100
PHOENIX TECHNOLOGIES LTD.
TECHNOLOGY LICENSE AGREEMENT
This Technology License Agreement ("Agreement") is entered into and is
effective as of February 12, 1998 ("Effective Date") between Phoenix
Technologies Ltd., a Delaware corporation having its principal place of business
at 000 Xxxx Xxxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 ("PTL"), and Maker
Communication, Inc., a corporation having its principal place of business at 00
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Licensee"). In
consideration of the premises and covenants contained herein, the parties agree
as follows:
1.0 DEFINITIONS
1.1 "Competitor" means a company, corporation, or other entity that develops,
markets, and/or license software similar in function to PTL's Virtual Chips line
of commercially available products.
1.2 "Contractor(s)" means a company, corporation, or other entity that provides
services for Licensee's Design Group, as set forth in Section 3.1.5 below. No
Competitor will be a Contractor.
1.3 "Core" means PTL's Virtual Chips synthesizable core software product in
source code form and any associated design files, as licensed under this
Agreement.
1.4 "Defect(s)" wil1 mean any mistake, problem, or error which is capable of
reproduction by PTL and which causes (a) an incorrect functioning or
non-functioning of the Software, or (b) renders the Software inoperable, or (c)
causes the Software to fail to meet its specifications.
1.5 "Derivative Work" means a computer program and any subsequent design,
including any resultant integrated circuit, which is a Modification made by
Licensee based on or incorporating material from the Software so that the
Modification, as a whole, represents an original work of authorship.
1.6 "Design Group" means a group within Licensee which is a single design team
designated to design Licensee's IC and/or test Licensee's IC. Such Design Group
will be designated on the Purchase Order. Each such group may have no more than
three locations, anywhere in the world. Each such location will be identified by
Licensee to PTL, in writing. Additional locations must be agreed to, in writing,
by PTL.
1.7 "Licensee's IC" means (a) the device created from integrated circuit designs
by the Design Group, as identified in the Purchase Order accepted by PTL, and
which incorporates the Core; and/or (b) the device created from integrated
circuit designs by the Design Group which is tested using the Test Environment.
l.8 "Modification(s)" means a revision, augmentation, abridgment, upgrade,
addition, adaptation, or other modification to the Software.
1.9 "Purchase Order(s)" means the order form issued to PTL by Licensee stating
the Software, Reuse, New Design Group, training, and/or services Licensee
requests from PTL.
1.10 "Reuse" means use of the Core by the Design Group on a new and functionally
different integrated circuit design. A Reuse occurs at synthesis of Licensee's
IC. Changes to fix functional problems (bugs), timing problems or other errors
in Licensee's IC will not be considered a Reuse.
1.11 "SGN Format" means Core represented in a synthesized gate level net list
format and subsequent formats as part of the process of creating an integrated
circuit.
1.12 "Software" means Core and Test Environment, collectively, as licensed under
this Agreement.
1.13 "Test Environment" means PTL's Virtual Chips simulation and test software
in source code form and any associated design files, as licensed under this
Agreement.
1.14 "Licensee Simulation Model" means a simulation program developed by
Licensee that contains the Core or derivatives thereof.
2.0 QUOTATIONS AND PURCHASE ORDERS
2.1 PTL will provide a written quotation for any Associated Fees, defined below,
for Software, Reuse, new Design Group, training, and/or other services requested
by Licensee ("Official Quotation").
2.2 Licensee will have no obligation to license any particular Software from
PTL, except as expressly set forth in Purchase Orders executed by authorized
representatives of Licensee, and accepted by PTL. The Purchase Order will
contain all of the information set forth on the Official Quotation.
Notwithstanding anything to the contrary on the Purchase Order, should Licensee
accept delivery of any Software or services from PTL, the information on the
Official Quotation will take precedence over the Purchase Order, and the
Official Quotation will be subject to the terms and conditions of this
Agreement.
2.3 Licensee will notify PTL, if Licensee desires to license additional Software
and/or an additional Design Group, and/or obtain other services, and PTL will
issue an Official Quotation to Licensee pursuant to this Section 2. Such other
services, including maintenance and support, and consulting will be subject to
execution of a separate addendum to this Agreement.
3.0 LICENSE
3.1 Subject to the terms and conditions of this Agreement and contingent upon
payment of all amounts due hereunder, PTL grants to Licensee the following non-
exclusive, nontransferable, worldwide licenses for use of the Software by the
Design Group:
3.1.1 A license to make Modifications to the Core, and use the derivative
implementation of the Core solely for incorporation into and distribution with
Licensee's IC, and for no other purpose.
3 1.2 A license to manufacture or have manufactured Licensee's IC, the
design of which is based in part on the Core, by a third party semiconductor
manufacturer, located anywhere in the world, and which may include Licensee
("Manufacturer(s)"). Provided, however, that during such manufacturing process,
any disclosure to Manufacturer is made
Phoenix Technologies Ltd./Confidential Phoenix Agreement Number 14820100
in the SGN Format for the limited purpose of manufacturing Licensee's IC. Prior
to disclosure of the SGN Format, such Manufacturer(s) will sign an agreement
With Licensee which includes (a) a confidently provision at least as restrictive
as set form in Section 9 below, (b) a provision that Manufacturer may not use
the SGN Format for the production of any device except Licensee's IC, and (c) a
provision that Manufacturer may not sell or make available Licensee's IC to any
party other than Licensee.
3.1.3 A license to Reuse the Core for design and development of additional
Licensee's IC by the Design Group. Provided, however, that prior to synthesis of
Licensee's IC, Licensee agrees to notify PTL, in writing, of Licensee's intent
to Reuse the Core. Such Reuse will be subject to an Official Quotation as set
forth in Section 2 above. Licensee does not have the right to produce any
Licensee's IC, the design of which is based upon the Core, until there is a
Purchase Order for such Reuse accepted by PTL under this Agreement
3.1.4 A license to make Modifications to the Test Environment, and use the
Test Environment for the sole purpose of testing one or more Licensee's IC, and
for no other purpose.
3.15 A license to (a) provide tile Core to Contractors, for the purpose of
making Modifications or maintaining the Core for use in Licensee's IC, and for
no other purpose and (b) provide the Test Environment to Contractors, for the
purpose of making Modifications and/or testing one or more Licensee's IC, and
for no other purpose. Prior to disclosure of the Software, such Contractors will
sign an agreement with Licensee which includes (x) a confidentiality provision
at least as restrictive as set forth in Section 9 below, (y) a provision which
allows PTL the right to inspect during regular business hours, upon five (5)
days written notice, Contractors use of the Software, and (z) a provision
indicating that Contractor will not disclose, redistribute, or sublicense the
Software, in whole or in part or in any form to any third party. Such Contractor
shall only be allowed to use the Software at Licensee's Design Group location.
Licensee accepts responsibility and liability for the actions of such
Contractors. PTL will notify Licensee of the basis for initiating an Inspection,
pursuant to subsection A), and allow Licensee to provide an explanation or cure
to the satisfaction of PTL. If PTL is not satisfied with the explanation or cure
provided by Licensee, PTL may, upon five (5) days notice, initiate the
inspection. PTL agrees to conduct the inspection in accordance with Licensee's
confidentiality and security policies.
3.1.6 A license to provide Licensee's customers the Simulation Model, in an
encrypted SGN Format or object code format, provided: (i) Licensee's customers
have first entered into an agreement with Licensee having confidentiality
restrictions similar to those contained in this Agreement to prohibit said
customer from disclosing the Simulation Model, or portions thereof, to third
parties; and (ii) that said agreement further restricts said customers from
reverse engineering, decompiling or performing any other acts to discover the
Simulation Model's means of operation.
3.2 Under no circumstances may Licensee disclose, sublicense distribute,
transfer, use or allow access to the Software, except as permitted under this
Section 3, to a third-party without prior written consent signed by an
authorized representative of PTL.
3.3 Licensee has the sole responsibility for supporting Licensee's
Modifications. PTL will have no liability or responsibility for Software
modified by anyone other then PTL. Nothing in the foregoing sentence is intended
to limit PTL's liability or responsibility for the unmodified Software.
3.4 Licensee will not alter or remove, and will not permit or authorize any
third party to alter or remove the copyright notices from the Software.
3.5 Licensee will not be obligated to provide PTL with Licensee's Modifications.
If Licensee provides PTL with a copy of any Modification, unless otherwise
agreed in a separate writing signed by authorized representatives of the
parties, Licensee will be deemed to have granted PTL a non-exclusive, perpetual,
worldwide, royalty free license to use and sublicense any such Modification for
any purpose PTL deems fit.
3.6 PTL may include third party intellectual property in the Software. PTL will
inform Licensee of such third party property, and Licensee will have the option
to refine disclosure of such Software. If Licensee receives such Software, then
Licensee agrees to be bound by the additional obligations or restrictions
required by the third parties with respect to such intellectual property.
3.7 Licensee is prohibited from using PTL's intellectual property to develop,
market and/or license (a) a stand alone synthesizable core software product
which is similar in function to the Core, or (b) a stand alone test environment
product which is similar in function to the Test Environment. ("Competitive
Product"). Licensee is not prohibited from independently (without any use of any
of PTL's intellectual property) developing, marketing, and/or licensing a
Competitive Product.
4.0 DELIVERY
PTL will deliver the Software and any other deliverables within ten (10)
business days following the acceptance of the Purchase Order by PTL, unless the
parties agree, in writing, to a different delivery schedule.
5.0 ASSOCIATED FEES AND PAYMENT
5.1 Licensee will pay PTL the associated fees for the Software, any applicable
per unit royalties, Reuse, new Design Group, training, and/or other services
["Associated Fee(s)"], as set forth in the Official Quotation and invoiced by
PTL. Per unit royalties are applicable, Licensee will report and pay such
royalties as set forth in this Section 5. Licensee's commitment to pay the
Associated Fees to PTL will be non-cancelable and the payment due will be an
absolute commitment and no payment will be refundable under any circumstances,
except as set forth in Section 8.3 below. All payments are payable in United
States dollars and will be due within thirty (30) days after the date of PTL's
invoice to Licensee, except with regard to per unit royalties where payment will
be due and payable as set forth in this Section 5.
5.2 Licensee is required to pay per unit royalties, Licensee will submit royalty
reports to PTL, on a form approved by PTL before the end of the month following
each calendar quarter
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Phoenix Technologies Ltd./Confidential Phoenix Agreement Number 14820100
after the Effective Date of this Agreement. Each report will accurately set
forth the number of units of each Licensee's IC (the design of which is based in
part on the Core) sold, or otherwise distributed or disposed of by Licensee
during such quarter. Each such report will be accompanied by payment of all
Associated Fees due to PTL pursuant to said report. Licensee's obligations to
furnish quarterly royalty reports and to make quarterly royalty payments to PTL
will continue as long as Licensee sells or distributes Licensee's IC, the design
of which is based in part on the Core. Royalty reports are required even if
Licensee reports no such sales or other distributions or disposals of Licensee's
IC, the design of which is based in part on the Core. If Licensee stops selling
Licensee's IC (the design of which is based in part on the Core), Licensee will
promptly submit to PTL a written notice, a find quarterly royal report, a final
royalty payment in the full amount of all Associated Fees due to PTL and a
written certification that it has stopped selling Licensee's IC (the design of
which is based in part on the Core).
5.3 Associated Fees and all other amounts payable by Licensee to PTL hereunder
do not include any taxes or charges imposed by any federal, state, local or
foreign jurisdiction. Licensee will pay any and all such xxxxx and charges
(other than tax based on PTL's net income) and will provide PTL with
satisfactory evidence of Such payment on request.
5.4 If a foreign government requires taxes to be withheld on payments to be made
by Licensee hereunder, then to the extent PTL is entitled to and can utilize a
U.S. Foreign Tax Credit for such taxes, Licensee may deduct such taxes from the
amount owed to PTL and pay them to the appropriate tax authority. Licensee will
obtain and deliver to PTL a receipt and a11 other documents necessary for PTL to
claim a Foreign Tax Credit.
5.5 If Licensee purchases licenses for Software other then the Test Environment
or uses the Test Environment in any manner not contemplated under this
Agreement, PTL may have a third party audit, no more than once per calendar
year, Licensee's records relating to the Software to determine whether Licensee
has correctly reported and calculated all of the Associated Fees due PTL. The
auditor shall be an accredited independent auditor from a recognized accounting
firm, and be mutually agreed upon by Licensee and PTL, with Licensee's
acceptance of the selected auditor not to be unreasonably withheld. If Licensee
will give the auditors reasonable access during normal business hours to
Licensee's premises where such records and documentation arc located. If an
audit discloses an underpayment of Associated Fees, Licensee will immediately
pay PTL the additional fees due with interest, from the original payment due
date, at the rate of one percent per month. PTL and Licensee will bear their own
expenses incurred in the audit; however, if an audit discloses an underpayment
of Associated Fees of five percent (5%) or more of the total Associated Fees
originally due for the period being audited, Licensee will reimburse PTL for all
reasonable expenses incurred by PTL the audit.
6.0 TRAINING
Subject to payment of fees by Licensee to PTL, PTL will provide to licensee
certain training of the Software. Such training will be provided at a regularly
scheduled PTL training class at PTL's San Xxxx, Ca1ifoniia facility. Licensee
will be solely responsible for all travel, accommodation, and miscellaneous
expenses for Licensee's attendance at such training. Training is subject to an
Official Quotation pursuant to Section 2 above.
7.0 OWNERSHIP
7.1 Title and full ownership in the Software, deliverables, related
documentation and all copies thereof will remain with PTL and/or its suppliers.
PTL retains the right to use, copy, modify, sublicense, and distribute the
Software and modifications thereto made by PTL. Licensee will not knowingly
infringe upon any rights of PTL or others in the Software, any other
deliverables or documentation.
7.2 Any and all Modifications, including Derivative Works, to the Software made
solely by Licensee will remain the sole property and responsibility of Licensee.
Licensee will have the right to register copyrights of its Derivative Works (as
a derivative work) and will have the responsibility of defending them. Any
Derivative Work will contain PTL and its suppliers' copyright polices embedded
in the code and displayed in the source code of the Derivative Work.
8.0 LIMITED WARRANT AND REMEDIES
8.1 PTL warrants that the Software, as delivered by PTL to Licensee hereunder
will, for a period of three (3) months after delivery of such Software to
Licensee, conform the respective industry standards set forth for said Software,
subject to mutually agreed upon exceptions.
8.2 During the warranty period, PTL will repair, at PTL's sole expense, any
Defect in the Software which causes the Software to fail to conform to such
specifications, provided that Licensee gives PTL written police of such Defect.
8.3 If the Software is found defective, PTL'S sole obligation under this
warranty, is, at PTL's option, to: (a) remedy such defect using commercially
reasonable efforts; or (b) refund to Licensee all amounts paid hereunder with
respect to the defective Software, and this Agreement with respect to the
defective Software will terminate.
8.4 THIS SECTION 8 SETS FORTH LICENSEE'S SOLE AND EXCLUSIVE REMEDIES FOR THE
PERFORMANCE OR NONPERFORMANCE OF THE SOFTWARE AND FOR ANY WARRANTY CLAIM WITH
RESPECT TO THE SOFTWARE. THE WARRANTY ABOVE WILL BECOME NULL AND VOID WITH
RESPECT TO ANY SOFTWARE THAT HAS BEEN MODIFIED IN AWAY WAY BY ANYONE OTHER THAN
PTL, WHETHER OR NOT SUCH MODIFICATIONS WERE PERMN1ITTED HEREUNDER.
8.5 PTL MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE
SOFTWARE OTHER THAN THE ONES EXPRESSLY SET FORTH IN THIS SECTION 8, AND PTL
EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT. NO AGENT OF PTL IS
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Phoenix Technologies Ltd./Confidential Phoenix Agreement Number 14820100
AUTHORIZED TO ALTER OR EXPAND THE WARRANTY OBLIGATIONS OF PTL.
9.0 CONFIDENTIALITY
9.1 The parties agree that any and all Software, business, and technica1 data
and information supplied by one party to the other party hereunder are and will
remain the confidential and proprietary information of the party disclosing the
information and/or its third party suppliers. All such information disclosed and
received hereunder will be held in confidence. Said information will be used
only by those employees and Contractors, as authorized in Section 3.1.5 above,
of the receiving party who have a need to know such information for purposes
related to this Agreement. Unless otherwise provided for herein, the
information, not including the Software, will be safeguarded for a period of
five (5) years from the disclosure date using at least the same degree of care
the receiving party uses to protect its own most confidential information, but
in no event less than reasonable care. The confidentiality provisions regarding
disclosure of the Software will continue in effect until such time as PTL may
make the Software available to the public without restrictions on disclosure.
The confidentiality provisions of this Agreement will survive any termination of
this Agreement. No obligations of confidentiality extend to information that (a)
is or becomes publicly available; without breach of this Agreement by the
receiving party, (b) is independently developed by the receiving party without
reliance on the confidential information, (c) is rightfully received with no
restriction on confidentiality.
9.2 Neither party will disclose the terms of this Agreement other then to
business, financial and legal advisors, or as required by law or regulation, or
make any reference to the other party in any press release, brochure or other
communication to the public, without the express written consent of the other
party. Notwithstanding the foregoing, PTL may publicly indicate that Licensee is
a customer of PTL, without disclosing any particular terms of the Agreement. Any
additional information related to the licensing of the Software that either
party wishes to make public shall be mutually agreed upon in writing prior to
disclosure.
10.0 INTELLECTUAL PROPERTY INDEMNIFICATION
10.1 Except as otherwise provided below, PTL will, at its own expense, defend or
settle any claim made or threatened or any suit or proceeding brought against
Licensee so far as it is based on an allegation that any Software furnished
hereunder infringe a North America or a European Community patent or copyright
in existence on the date of this Agreement, if Licensee notifies PTL in writing
within twenty (20) days of such claim, suit or proceeding, and gives PTL all
information, assistance and authority to defend or settle the same at PTL's
expense. PTL will have no responsibility hereunder for any settlement of any
such claim or suit made by Licensee without PTL's prior written approval. PTL
will reimburse Licensee for the actual and reasonable expenses incurred by it in
providing PTL with such information, assistance and authority but PTL will not
reimburse Licensee for any cost of counsel retained by it in connection with
such claim suit or proceeding.
10.2 If any Software is held to infringe and the use of said Software is
enjoined, or if PTL believes that the Software is likely to become the subject
of a claim of infringement or to be enjoined, PTL will have the option, at its
expense, (a) to procure for Licensee the right to continue using the infringing
or potentially infringing Software; or (b) to replace the infringing or
potentially infringing Software with a non-infringing functionally equivalent
Software; or (c) to modify the infringing or potentially infringing Software so
it becomes non-infringing but functionally equivalent.
10.3 PTL's obligations stated under this Section 10 will not apply to any claim,
suit or proceeding (a) to the extent it is based upon any Modification of the
Software other than by PTL or the combination of the Software with non-PTL
hardware or software, if the claim, suit or proceeding would have been avoided
if the Software had not been so modified or combined, (b) based on Licensee's
use of other than the latest release of the Software, if the claim, suit or
proceeding would have been avoided by use of such latest release, (c) based on
the use of the Software in practicing any process that is not inherent in the
operation of the Software itself, and/or (d) based on a modified version of the
Software made by PTL in compliance with Licensee's instructions, designs or
specifications.
10.4 This Section 10 sets forth the entire obligation of PTL, and Licensee's
exclusive remedy, for the actual or alleged infringement of any patent,
copyright, trade secret or other intellectual property right, of any person or
entity by any Software or other item, material, or service provided by PTL
under, or in collection with, this Agreement.
11.0 LIMITATION OF LIABILITY
11.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY REASON OTHER
THAN AS EXPRESSLY SET FORTH HEREIN. WITH THE EXCEPTION OF ANY BREACH OF THE
CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 9.0, THE PARTIES AGREE THAT
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL
PURPOSE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR ANY
THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, EVEN
IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT
SHALL EITHER PARTY'S TOTAL LIABILITY UNDER ANY OR ALL PROVISIONS OF THIS
AGREEMENT FOR ALL CAUSES OF ACTION ON A CUMULATIVE BASIS EXCEED FIVE HUNDRED
THOUSAND DOLLARS ("LIMITATION CAP"). THIS PARAGRAPH NOTWITHSTANDING, LICENSEE
UNDERSTANDS AND AGREES THAT THE LIMITATION CAP AND THE WAIVER OF CONSEQUENTIAL,
INDIRECT, INCIDENTAL AND SPECIAL DAMAGES SHALL NOT APPLY TO ANY INTENTIONAL, OR
WILLFUL ACTS, OR ACTS OF GROSS NEGLIGENCE, BY EITHER LICENSEE OR ITS CONTRACTORS
THAT RESULTS IN THE
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Phoenix Technologies Ltd./Confidentia1 Phoenix Agreement Number 14820100
UNAUTHORIZED DISCLOSURE OR UNAUTHORIZED USE OF THE SOFTWARE. FOR THE PURPOSES OF
THIS SECTION CONSEQUENTIAL DAMAGES SHALL MEAN THOSE DAMAGES WHICH MAY BE AWARDED
BY A COMPETENT COURT OF LAW FOR RELATED TO THE LOST REVENUE AND/OR COST OF
CREATING OR RESTORING PROPERTY DAMAGED OR INJURED AS A RESULT OF LICENSEE'S
UNLAWFUL CONDUCT OR BREACH OF THIS AGREEMENT.
11.2 Licensee agrees that the limitations of liability and disclaimers of this
Agreement will apply regardless of whether Licensee has accepted any Software or
any other product or service delivered by PTL. The parties agree that PTL has
set its prices and entered into this Agreement reliance upon such limitations
and disclaimers, that the same reflect an allocation of risk between the parties
(including the risk that a contract remedy may fail of its essential purpose and
cause consequential loss), and that the same form an essential basis of the
bargain between the parties.
12.0 INDEMNITY OF PTL
Except for PTL's obligations as expressly set forth herein, Licensee will at its
expense defend, indemnify and hold PTL harmless PTL, from any and all actions,
claims, costs, liabilities, losses, and expenses including, but not limited to,
reasonable attorneys' fees and cost of suit, incurred by PTL as a result of or
arising from Licensee's: (l) use, misuse, or modification of the Software, as
well as its reliance thereon or interpretations thereof in creating any
resulting designs and/or products; or (2) its sublicensing, sale or other
disposition of said designs or products. The foregoing obligations upon Licensee
apply only if: (a) PTL gives Licensee written notice of any claims and/or
settlement claims within twenty (20) days of such claim and/or threatened claim;
(b) PTL allows Licensee to solely direct and control the defense and/or
settlement of the claim; and (c) PTL provides Licensee with the authority,
information and assistance (at Licensee's expense) that Licensee reasonably
requests to defend the claim, gives all relevant and available evidence PTL's
possession (subject to an acceptable confidentiality agreement and/or the
securing of a protective order if disclosure is required pursuant to a court
order), and gives reasonable assistance to Licensee in the defense of such claim
or threatened claim.
13.0 TERM AND TERMINATION
13.1 The term of this Agreement will begin upon the Effective Date and will
continue until terminated, as set forth herein.
13.2 If either party breaches a material provision and where capable of remedy
does not cure such breach within thirty (30) days after written notice from the
other party, such other party will have the right at its option to: (a) suspend
performance or payment until such breach is cured; (b) terminate this Agreement,
(c) seek a combination of (a) and (b) and those remedies available at law or
equity to the extent not limited by the terms of this Agreement. If the breach
involves a delay in or failure to pay money when due, the cure period will be
ten (10) days rather than thirty (30) days. The election of (a), (b) or (c)
above wil1 not excuse the breaching party from any obligation arising prior to
the date of such election.
13.3 Should either party: (a) become insolvent; (b) make an assignment for the
benefit of creditors; (c) file or have filed against it a petition in bankruptcy
or seeking reorganization; (d) have a receiver appointed; and/or (e) institute
any proceedings for 1iquidation or winding up; then the other party may, in
addition to other rights and remedies it may have, terminate this Agreement
immediately by written notice.
13.4 Upon termination of this Agreement, the licenses and rights granted
hereunder and the obligations imposed hereunder will cease except as otherwise
expressly set forth herein. Upon termination, Licensee will return the Software
including all copies and documentation pertaining thereto in Licensee's
possession and those copies furnished to any Manufacturer, and will notify
through one of Licensee's officers, in writing, of such return within thirty
(30) days of termination. The ownership, confidentiality, warranties, indemnity,
1imitation of liability, payment of fees, obligations upon termination, and
general provisions of this Agreement will survive the termination of this
Agreement indefinitely, unless otherwise specified in the respective section.
14.0 GENERAL
14.1 Licensee and PTL agree that this Agreement constitutes the complete
Agreement and understanding between the parties with respect to the subject
matter herein. This Agreement supersedes all prior agreements, understandings,
and negotiations, whether written or verbal, with respect to the subject matter
herein. No amendment or modification of this Agreement will be effective unless
it is set forth in a writing which refers to the particular provisions so
amended or modified and is executed by authorized representatives of both
parties.
14.2 Notices will be sent by first class mail or express mail, postage prepaid,
by courier or other personal delivery, or by facsimile (with telephonic
confirmation of receipt) to the parties at the addresses specified at the
beginning of this Agreement or to such other address as a party designates in
writing to the other party. Notices to PTL will be sent to the attention of the
Legal Department.
14.3 Licensee agrees that it will not export any Software or other materials
provided by PTL hereunder in violation of any law, statute or regulation,
including the United States Export Administration Act and regulations
thereunder.
14.4 This Agreement will be governed by and construed in accordance with the
internal laws of the State of California, without regard to or application of
choice of law rules. All disputes which arise in connection with this Agreement
will be resolved in the state and federal Courts in California and Licensee
hereby submits to the personal jurisdiction of such courts.
14.5 No third party will have any rights under this Agreement. The parties are
independent contractors, and neither party will have any right or power to
create any obligation or responsibility on behalf of the other party.
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Phoenix Technologies Ltd./Confidential Phoenix Agreement Number 14820100
14.6 The disclosing party shall be entitled to seek temporary and/or permanent
equitable relief (including injunctive relief in the event of any actual or
threatened breach of this Agreement by the receiving party, it being agreed that
monetary damages may be insufficient to adequately compensate the disclosing
party.
14.7 Licensee may not assign its rights or delegate its duties under this
Agreement without the prior written consent of PTL, which consent will not be
unreasonably withheld. Any attempted assignment or delegation by Licensee
without PTL's prior written consent will be void and will give PTL the right to
terminate this Agreement on written notice to Licensee. Subject to the foregoing
this Agreement will inure to the benefit of and be binding on the respective
successors and assigns of the parties.
14.8 Waiver by either party of nonperformance or any breach of any provision of
this Agreement will not operate as a waiver of any subsequent nonperformance or
other breach of the same or any other provision. The failure by a party to
exercise any of its rights under this Agreement will not be deemed to constitute
a waiver of any of such rights, or other rights or remedies available to such
party.
14 9 Each party represents to the other that it has all authority to enter into
this Agreement and to perform the obligations hereunder. PTL further represents
it has all right, title, and interest and/or license rights in the Software
necessary to grant the licenses and has not taken any action or suffered any
action to be taken with respect to the Software which would restrict or affect
the license rights granted hereunder.
This Agreement is entered into on behalf of the parties by their duly authorized
representatives.
PTL: Phoenix Technologies, Ltd.
Signature /s/ Xxxxxx X. Xxxxxxx
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Print Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: V.P. General Counsel, and Secretary
-----------------------------------
Date: 3/5/98
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Licensee: Maker Communications, Inc.
Signature: /s/ Xxxxxxxx Xxxxxxx
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Print Name: Xxxxxxxx Xxxxxxx
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Title: Vice President & CFO
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Date: 2/27/98
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Confidential Phoenix Agreement Number 14820200
PHOENIX TECHNOLOGIES LTD.
SUPPORT AND MAINTENANCE ADDENDUM
This Support and Maintenance Addendum ("Addendum") is entered into and is
effective as of February 12, 1998, ("Effective Date") between Phoenix
Technologies Ltd., a Delaware corporation having its principal place of business
at 000 Xxxx Xxxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 X.X.X. ("Phoenix") and
Maker Communication, Inc., a Delaware corporation having its principal place of
business at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Licensee").
Phoenix and Licensee have previously entered into a Technology License
Agreement, Phoenix Agreement Number 14820100, dated February 12, 1998
("Controlling Agreement"), where Licensee has licensed certain Phoenix Virtual
Chips software ("Software").
1.0 SUPPORT AND MAINTENANCE
1.1 Phoenix will provide response to questions Licensee has with regard to the
Software ("Support"). Such Support shall be between the hours of 8:00 am. and
5:00 p.m. Pacific Time, Monday through Friday (exclusive of Phoenix holidays),
and is limited to by (a) telephone at 0-000-000-0000, (b) Facsimile at
(000)000-0000, or (c) electronic mail at xxxxxxx@xxxxxx.xxx. Licensee shall
advise Phoenix, in writing, of no more than four users of the Software who will
be the contact with Phoenix for such Support ("Contact Persons"). Any additional
Contact Persons must be agreed to, in writing, by Phoenix.
1.2 Phoenix will provide Maintenance Updates, herein defined, to the Software
and documentation.
1.2.1 Maintenance Updates shall mean all changes, corrections, additions,
and bug fixes to the Software made by Phoenix which are not Major Enhancements,
herein defined.
1.2.2 Major Enhancements shall mean upgrades or new versions of the
Software that provide substantial additional value, or substantial1y extend the
performance or improve the performance functionality of the Software. Major
Enhancements shall be considered new Software under the Controlling Agreement.
1.3 Phoenix will respond to requests with regard to a Software and/or
documentation problem(s) ["Maintenance"]. Such assistance will be prioritized
based upon Licensee's assessment, in good faith, of the severity of the problem
into one of the following categories:
1.3.1 Level I Priority: Defect which severely hampers Licensee
productivity. Phoenix will use commercially reasonable efforts to fix Defect
with a satisfactory work around solution within ten (10) business days and
provide a solution in the next scheduled Software or documentation release.
1.3.2 Level II Priority: Defect which minimally inconveniences Licensee.
Phoenix will use commercially reasonable efforts to resolve these Defects and to
correct them in the next scheduled Software or documentation release.
2.0 TERM AND FEES
2.1 Support, Maintenance Updates, and Maintenance ("Support Program"), is
available for twelve (12) month periods. Support fees for such Support Program
are due and payable as set forth in Section 6 of the Controlling Agreement. The
Support Program will begin on the date of acceptance of the Purchase Order by
Phoenix.
2.2 If Licensee desires to renew such Support Program, Licensee will notify
Phoenix, in writing, at least thirty (30) days prior to such Support Program
expiration. In the event that Licensee allows the Support Program to expire and
subsequently decides to obtain the Support Program then Licensee shall notify
Phoenix, in writing. In addition, Licensee shall pay Support Fees and any
applicable reinstatement fees to Phoenix.
2.3 Phoenix will issue an Official Quotation to Licensee for such Support
Program pursuant to Section 2 of the Controlling Agreement.
3.0 GENERAL
3.1 EXCEPT AS SET FORTH HEREIN, PHOENIX MAKES AND LICENSEE RECEIVES NO OTHER
WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO SUPPORT PROGRAM PROVIDED UNDER THIS
ADDENDUM, INCLUDING ALL WARRANTS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. NEITHER PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS
UNDER OR PERFORMANCE OF THIS ADDENDUM FOR CONSEQUENTIAL, EXEMPLARY, OR
INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR
OBLIGATIONS OF PHOENIX FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE
DELIVERY USE, OR PERFORMANCE OF TO SUPPORT PROGRAM OR SERVICES PROVED BY PHOENIX
UNDER THIS ADDENDUM.
3.2 Each party acknowledges that it has read this Addendum, understands it, and
agrees to be bound by its terms. This Addendum may only be modified by a written
instrument duly executed by both parties to this Addendum. The terms and
conditions not stated herein shall be as set forth in the Controlling Agreement.
3.3 Licensee may not assign this Addendum, except as set forth in the
Controlling Agreement and only in conjunction with the Controlling Agreement.
This Addendum is entered into on behalf of the parties by their duly
authorized representatives.
Phoenix: Phoenix Technologies Ltd.
Signature: /s/ Xxxxxx X. Xxxxxxx
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Print Name/Title: Xxxxxx X. Xxxxxxx, V.P. General Counsel, and Secretary
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Date: 3/5/98
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Licensee: Maker Communications, Inc.
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Signature: /s/ Xxxxxxxx Xxxxxxx
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Print Name/Title: Xxxxxxxx Xxxxxxx/ V.P. & CFO
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Date: 2/27/98
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