CONFIDENTIAL
MAKER COMMUNICATIONS, INC.
OEM AGREEMENT
This OEM Agreement, including all Exhibits attached hereto, ("Agreement") is
made as of May 18, 1998, ("Effective Date") is by and between MAKER
COMMUNICATIONS, INC. ("MAKER"), a Delaware corporation with a place of
business at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, and SONOMA SYSTEMS,
INC., a California corporation, with a place of business at 0000 Xxxxxxxxx
Xxx, Xxxxx 000, Xxxxxx xxx Xxx, XX 00000-0000 ("CUSTOMER").
WHEREAS, CUSTOMER desires to purchase the MAKER Products specified herein and
MAKER agrees to provide the Products to CUSTOMER subject to this Agreement.
NOW THEREFORE, in consideration of the mutual promises and conditions in this
Agreement, the parties hereby agree as follows:
DEFINITIONS:
"Products" shall mean MAKER's semiconductor devices, including Documentation,
set forth in Exhibit A which is attached hereto.
"Documentation" shall mean all associated MAKER documentation, in whole or in
part, in printed or electronic from provided with the Products.
1. TERM: Unless terminated earlier, the initial term of this Agreement
shall be for a period of two (2) years from the Effective Date and shall
renew thereafter for one (1) additional one (1) year term unless either party
notifies the other at least sixty (60)days prior to expiration of the
then-current term of its intent not to renew the Agreement.
2. PURCHASE OF PRODUCTS: Subject to CUSTOMER's compliance with the
material terms of this Agreement, MAKER agrees to sell to CUSTOMER the
Products specified in Exhibit A. CUSTOMER agrees to provide MAKER with a
written purchase order for all purchases. Additional Products may be added to
this Agreement by written amendment. To the extent required by Subcontractors
and Distributors, Maker shall allow CUSTOMER, Subcontractors and Distributor's
to purchase Products under this Agreement, provided: (i) CUSTOMER provides
Maker with prior written notice of the effective date of all such purchased
and the names and addresses of the eligible Subcontractors and Distributors,
(ii) all such Subcontractors and Distributor's agree in writing to be bound by
the terms and conditions of this Agreement, (iii) all such Subcontractors and
Distributors specify on each order that they are ordering the Products
subject to this Agreement and solely on behalf of CUSTOMER, and (iv) all such
Subcontractors and Distributors, prior to delivering any Products, provide
Maker, in writing, with the name of each customer who will be receiving the
Products. Products purchased by such Subcontractors and Distributors for the
benefit of CUSTOMER shall be governed by and considered to be under this
Agreement. All quantitates of the Products purchased by Subcontractors and
Distributors shall accrue against CUSTOMER'S Estimated Quantities on the
Forecasts.
3. PRICES: CUSTOMER shall pay MAKER for the Products according to the
pricing schedule in Exhibit B, a copy of which is attached hereto. Prices are
exclusive of all federal, state, municipal and all other governmental
exercise, sales, use, and similar taxes, duties, or tariffs. CUSTOMER agrees
to pay all such taxes, duties, and tariffs. CUSTOMER must provide MAKER with
written certification for any claim of tax or other exemption prior to
shipment of CUSTOMER's order. If MAKER is required to pay additional taxes,
CUSTOMER shall immediately reimburse and hold MAKER harmless for all such
taxes.
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4. PAYMENT TERMS: Payment is due net thirty (30) days from the date of
MAKER's shipment. Payment shall being U.S. dollars. Based on CUSTOMER's credit
standing, MAKER may require alternative payment terms or withhold the
shipment of Products. Purchase orders shall be used for invoicing purposes
only and shall be governed solely by the terms and conditions of this
Agreement. MAKER is granted a security interest in the Products and their
proceeds and retains a right of possession in the Products until such time as
CUSTOMER has paid for such Products in full. CUSTOMER agrees to cooperate and
execute all documents that are necessary for MAKER to perfect a security
interest in the Products.
5. SHIPMENTS: Prices are F.O.B. MAKER. CUSTOMER is responsible for all
shipping, handling, insurance costs and any fees, taxes and duties. Unless
previously agreed to by MAKER, Products shall be shipped in MAKER'S standard
packaging.
6. PURCHASE ORDERS: CUSTOMER shall submit written purchase orders
("P.O.") to MAKER for each purchase. Each P.O. shall include: (i) name and
MAKER part number of each Product ordered, (ii) quantity of each Product
ordered, (iii) price of each Product, (iv) requested delivery date, and (v)
shipping instructions. All P.O.'s are subject to MAKER's acceptance. MAKER
agrees to notify CUSTOMER within five (5) days of receipt of a P.O. if it has
not be accepted by MAKER.
7. FORECASTS: CUSTOMER shall provide MAKER with written non-binding
forecasts for each Product by the last business day of each calendar month
for the nest rolling twelve (12) month period.
8. CHANGES AND CANCELLATIONS: CUSTOMER may cancel or reschedule shipments
of standard (non-custom) Products, subject to the following table, by
providing MAKER with a written notice for all such cancellation or reschedule.
The number of days specified in the table are the number of working days
after MAKER's receipt of such written notice for cancellation or reschedule.
Cancellation or rescheduling of custom orders or custom product is not
permitted.
Number of days before Cancellation Charges Reschedule Option
Scheduled delivery (% of original Release)
[*] [*]% Not allowed
[*] [*]% New delivery date must be written within 90
days of the original delivery date. Maximum
of two (2) reschedules per line item.
[*] [*]% Unlimited reschedules
9. DELIVERY AND ACCEPTANCE: Delivery schedules for the Products are
subject to MAKER's then-current lead times and Product availability. MAKER
will make reasonable efforts to meet delivery dates quoted or acknowledged,
but shall in no event be liable for failure to meet any such date(s). MAKER
shall have the right to deliver Products up to five (5) days prior to any
agreed upon delivery date. MAKER reserves the right to make deliveries in
installments and any invoice or purchase order shall be severable as to any
such installments with prior notification given by MAKER to CUSTOMER or
CUSTOMER's Subcontractors or Distributors. Delay in delivery or default of
any installment shall not relieve CUSTOMER of its obligation to accept and pay
for remaining installments. CUSTOMER shall accept or reject each shipment
within five (5) days of delivery. All Products shall be deemed accepted by
CUSTOMER, unless CUSTOMER provides MAKER with written notice of rejection,
specifying the reason, within five (5) days of delivery of the Products to
CUSTOMER. CUSTOMER also agrees within five (5) days of receipt of any
delivery to notify Maker of any known or obvious discrepancies in any
shipment. Defective Products shall be subject to MAKER's warranty.
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10. RETURN POLICY: CUSTOMER must obtain a MAKER Return Material
Authorization ("RMA") prior to returning any Products returned to MAKER.
Products returned to Maker without an RMA will not be accepted by MAKER and
will be returned to CUSTOMER at CUSTOMER's sole risk and expense. Customer
shall be responsible for all shipping, handling, and insurance costs for all
Products returned to MAKER.
11. CUSTOMER DEFAULT: IF CUSTOMER is in breach on any provision of this
Agreement and fails to cure such breach within [*] ([*]) days, then all of
CUSTOMER's payment obligations to MAKER shall immediately become due and
payable, and MAKER may, with thirty (30) days notice, (i) decline to make
further shipments, (ii) terminate Customer's unfilled order(s), and/or (iii)
recall and retake possession of Products in transit, without affecting any of
MAKER's other rights ore remedies. Continued shipment by MAKER following
CUSTOMER's default shall not constitute a waiver nor shall it relieve the
CUSTOMER of any its obligations herein.
12. MAKER DEFAULT: Any order for Products may be cancelled, in whole or in
part, due to MAKER's failure to delivery Products in accordance with this
Agreement, provided that such cancellation shall be effective only upon
MAKER's failure to correct such failure to deliver within [*] ([*]) days of
CUSTOMER's written notice of cancellation. In no event shall MAKER be liable
for increased manufacturing costs, cost of labor, requalification, delay loss
of profits, good-will, or any incidental or consequential damages.
13. DISCONTINUANCE OF PRODUCTS: MAKER reserves the right to discontinue
or withdraw any Products. MAKER agrees to provide CUSTOMER with six (6)
months prior written notice of such discontinuance or withdrawal of Products.
CUSTOMER shall have the right to make the last-time purchase of such
discontinued or withdrawn Products, provided CUSTOMER accepts delivery of all
such Products within twelve (12) months from the date of MAKER's notice of
discontinuance or withdrawal.
14. COPYRIGHTS, TRADEMARKS AND NOTICES: CUSTOMER shall not remove or
obscure any MAKER or MAKER's supplier's markings, logos, colors or other
insignia which are affixed to the Product at the time of MAKER's shipment.
CUSTOMER shall reproduce and include MAKER's copyright and/or other
intellectual property right notice and U.S. Government Restricted Rights
legend at least once on a label affixed to the Software media and on the
Documentation of every copy of the Product, including partial copies. Only
Product licensed from MAKER shall bear MAKER's markings, logos or other
insignia.
15. LIMITED WARRANTY: Unless otherwise specified in Exhibit A, for a
period of twelve (12) months from the date of delivery, MAKER warrants that
unaltered Products will conform to MAKER's published specifications and
shall be free from defects in workmanship and materials, provided that
CUSTOMER returns all nonconforming Products by a method of shipment approved
by MAKER, obtains an RMA, Products are received by MAKER in good condition,
without their markings altered, defaced, or removed, and accompanied with a
written description of the defect(s). The foregoing warranty does not apply
to any Products which have been subject to alteration, misuse (including
static discharge), neglect, accident or modifications or which have been
soldered or altered during assembly and are not capable of being tested by
MAKER under its normal test compatible with all equipment and/or software
configurations. MAKER's sole and exclusive liability and CUSTOMER's sole and
exclusive remedy shall be, at Maker's option, to repair, replace, or refund
the purchase price paid by COMPANY fore the defective Products. THE PRODUCTS
ARE NOT DESIGNED, INTENDED, OR AUTHORIZED FOR USE AS COMPONENTS IN LIFE
SUPPORT PRODUCTS OR SYSTEMS. EXCEPT AS PROVIDE DIN THIS SECTION, MAKER MAKES
NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL
OTHER WARRANTIES ARISING OUT OF OR IN CONNECTION WITH THE SALE, RESALE,
AND/OR PURCHASE OF THE PRODUCTS, OR THE USE,
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REPAIR OR PERFORMANCE THEREOF, OR ANY COURSE OF DEALING OR COURSE OF
PERFORMANCE UNDER ANY AGREEMENT BETWEEN CUSTOMER AND MAKER.
16. LIMITATION OF LIABILITY
16.1 No default shall be caused by and MAKER shall not be responsible to
CUSTOMER for any loss, damages, or penalty resulting from any delay or
failure to perform the obligations of MAKER herein that are due to any cause
beyond MAKER's control. Nor shall MAKER be liable to CUSTOMER for any
delay(s) or failure(s) to perform its obligations due to the scarcity of the
basic elements needed to produce compounds, chemicals, micro electronic parts
(or similar materials) or because of any governmental restriction whatsoever
upon the possession or distribution of such basic elements. Anticipated
delivery dates shall be deemed extended for a period of time equal to the
time lost due to any such delay excusable under this Section 16.
16.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION,
LOSS OF INCOME, DATA, USE OR INFORMATION, EVEN IF A PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
16.3 IN NO EVENT SHALL THE LIABILITY OF MAKER EXCEED [*] DOLLARS ($[*]) OR
THE AMOUNT PAID FOR THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM,
WHICHEVER IS GREATER.
17. INFRINGEMENT INDEMNITY: MAKER will, subject to Section 16 above,
defined CUSTOMER against a claim that the Product infringes a valid United
States, Canadian, European Union, or Japanese patent or copyright. MAKER will
pay resulting costs, damages and reasonable attorney's fees finally awarded
against CUSTOMER or agreed to in any settlement provided that (a) CUSTOMER
promptly notifies MAKER in writing of any such claim, (b) MAKER has sole
control of the defense and all related settlement negotiations, and (c)
CUSTOMER cooperates in the defense and furnishes all related evidence in or
under its control. If such a claim has occurred, or in MAKER's opinion is
likely to occur, CUSTOMER shall immediately discontinue all use, manufacture
and distribution of the Product and permit MAKER, at MAKER's option and
expense, to (a) procure for CUSTOMER the right to continue using such
product, (b) replace or modify the Product so it becomes non-infringing, or
(c) refund the amount paid to MAKER for the infringing Product. MAKER shall
have no liability for any claim based upon (a) the combination, operation, or
use of the Product with equipment, data, or software not furnished by MAKER if
such infringement could have been avoided through the use of other equipment,
data or software or by the avoidance of use with equipment, data or software
not provided by MAKER, (b) modifications to the Product not made by MAKER or
made by MAKER in compliance with CUSTOMER's designs, specifications or
instructions, or (c) a version of the Product other than the currently
released version. This Section 17 sets forth MAKER's entire liability and sole
obligation and CUSTOMER's exclusive remedy in the event of any claim of
intellectual property infringement.
18. CUSTOMER INDEMNITY: CUSTOMER shall indemnify MAKER and hold MAKER
harmless against any claim, suit, award of damages, and cost made against
MAKER by a judgment or any amount in settlement or compromise thereof agreed
to by both parties herein insofar as the same is based on CUSTOMER's use,
sale, or distribution of the Products.
19. CONFIDENTIAL INFORMATION: "Confidential Information" means any
information of a sensitive or proprietary nature possessed, obtained or
developed for the disclosing party. Such information includes but is not
limited to, pre-release information relating to Products, product designs,
marketing plans, customer lists, sales forecasts, prices, policies practices
and the terms of this Agreement. All Confidential Information must be labeled
"Confidential" or the substantial equivalent thereof or, if disclosed orally,
shall be summarized in writing to the receiving party within thirty (30) days
of disclosure. The receiving party shall treat all
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during the warranty period. Software which does not substantially conform to
the MAKER user documentation may be returned for, at MAKER's option, repair
or replacement during the warranty period. If MAKER is unable to replace
defective media or if MAKER is unable to repair or replace the Software which
does not substantially conform to the MAKER user documentation within a
reasonable time, MAKER will (at its option) either replace the Software with
functionally similar programs or refund the license fee LICENSEE paid for the
Software. MAKER does not warrant that the Software is error-free, will
operate without interruption or is compatible with all equipment and software
configurations. This warranty does not cover any Software which has been
subjected to damage or abuse or has been altered or changed in any way. MAKER
is not responsible for problems caused by computer hardware or computer
application or operating systems. EXCEPT AS PROVIDED IN THIS SECTION 5, MAKER
MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE,
ITS MERCHANTABILITY OR ITS FITNESS FOR A PARTICULAR PURPOSE. REPAIR,
REPLACEMENT OR REFUND (AT THE OPTION OF MAKER) IS THE EXCLUSIVE REMEDY IF
THERE IS A DEFECT OR THE PRODUCT DOES NOT SUBSTANTIALLY CONFORM TO THE USER
DOCUMENTATION.
6. LIMITATION OF LIABILITY:
IN NO EVENT SHALL EITHER MAKER OR LICENSEE BE LIABLE FOR ANY INDIRECT,
CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS
INFORMATION) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF
THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE
SHALL MAKER'S AGGREGATE LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE,
EXCEED THE AMOUNT OF LICENSE FEES PAID BY LICENSEE FOR THE SOFTWARE GIVING
RISE TO THE CLAIM.
7. INFRINGEMENT INDEMNITY:
MAKER will, subject to Section 6, defend LICENSEE against a claim that the
Software infringes a valid United States, Canadian, European Union, or
Japanese patent or copyright. MAKER will pay resulting costs, damages and
reasonable attorneys' fees finally awarded against LICENSEE or agreed to in
any settlement, provided that (a) LICENSEE promptly notifies MAKER in writing
of any such claim, (b) MAKER has sole control of the defense and all related
settlement negotiations, and (c) LICENSEE cooperates in the defense and
furnishes all related evidence in or under its control. If such a claim has
occurred, or in MAKER's opinion is likely to occur, at MAKER's option and
expense, MAKER agrees to (a) procure for LICENSEE the right to continue using
such Software, (b) replace or modify the Software so it becomes
non-infringing or (c) refund the license fee LICENSEE paid for the infringing
Software. MAKER shall have no liability for any claim based upon (a) the
combination, operation, or use of the Software with equipment, data, or
software not furnished by MAKER, (b) modifications to the Software not made
by MAKER and/or (c) a version of the Software other than the currently
released version of the Software. This Section 7 sets forth MAKER's entire
liability and sole obligation and LICENSEE's exclusive remedy in the event of
any claim of intellectual property infringement.
8. MAINTENANCE AND SUPPORT:
8.1 With the exception of LinkMaker for which Maintenance, Support, and
Enhancements is not available, for a period of thirty (30) days from the
delivery of the Software, MAKER will provide Maintenance for the Software
free of charge ("Initial Maintenance"). "Maintenance" consists of Support for
and Enhancements to the Software. "Support" means reasonable telephone and
e-mail support for the Software during the hours of
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9:00 a.m. to 6:00 p.m. U.S. Eastern Standard Time, on MAKER's regular
business days. MAKER will use reasonable efforts to respond to a request for
Support within twenty-four (24) hours. "Enhancement" shall mean a new version
of the Software that is commercially released by MAKER to its Maintenance
customers. LICENSEE agrees and acknowledges that (i) MAKER is under no
obligation to create, develop, or release any Enhancements, (ii) all
Enhancements shall be subject to this Agreement and (iii) MAKER may develop
or market new or different products which use all or part of the Software and
which shall not constitute an Enhancement.
8.2 LICENSEE may purchase Maintenance for a twelve (12) month period
("Maintenance Period") by paying MAKER the "Annual Maintenance Fee" described
in the Schedules. The Annual Maintenance Fee specified in the Schedules shall
be valid for twenty four (24) months from the Effective Date of this
Agreement. Thereafter, the Annual Maintenance Fee shall be at MAKER's
then-current rate, unless otherwise agreed to in writing. There shall be no
refunds or credits if Maintenance is terminated prior to the end of any
Maintenance Period, unless such termination is a result of MAKER's breach of
its Maintenance obligations. MAKER is under no obligation to offer or provide
Maintenance: (i) if LICENSEE fails to notify MAKER in writing of its
intention to purchase Maintenance, (ii) if LICENSEE fails to pay the Annual
Maintenance Fee within thirty (30) days of the beginning of each Maintenance
Period, or (iii) for any version of the Software other than the most current
version and the one version prior to the most current release.
9. UPDATES:
During the term of this Agreement, MAKER will provide or make available to
LICENSEE, free of charge, any updates to the Software, but not LinkMaker,
which MAKER generally makes available to its licensees. "Update" means
program logic and documentation change to correct an error or defect and to
maintain the operational quality of the Software. Updates do not include
Enhancements or any additions or improvements to the features, functionality or
performance of the Software.
10. NOTICES:
Any notices or reports required by this Agreement to be given by one party to
the other party shall be made in writing to that party at the address shown
below or any other address that may be designated in writing from time to
time by the party. All notices to be given by either party to the other under
this Agreement shall be deemed given upon receipt, in the case of (i)
personal delivery, (ii) facsimile transmission (if, followed-up with a
written notice sent via mail), or (iii) on the third day following deposit in
the mail if the notice is sent by prepaid certified mail, return receipt
requested.
Notice to MAKER: Notice to LICENSEE:
---------------- -------------------
Maker Communications, Inc. Sonoma Systems, Inc.
00 Xxxxx Xxxxx Xxxxxx 0000 Xxxxxxxxx Xxx
Xxxxxxxxxx, XX 00000 Suite 600
Attn: President Marina del Rey, CA 90292-6695
Attn: VICE PRESIDENT OF FINANCE
11. GENERAL TERMS:
11.1 This Agreement is the complete and exclusive agreement between MAKER
and LICENSEE regarding this subject matter and supersedes all agreements and
all communications, whether written or oral, between the parties.
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11.2 This Agreement may only be amended, changed, or revised by a written
agreement between MAKER and LICENSEE. A waiver of any violation or failure to
enforce any provisions of this Agreement shall not constitute a waiver of any
rights with respect to this Agreement.
11.3 All terms and conditions of this Agreement are severable. If any term
or provision, or any portion thereof, of this Agreement is held to be invalid,
illegal or unenforceable, the remaining portions shall not be affected.
11.4 Section heading are intended for convenience only and shall not be
used in the interpretation of this Agreement.
11.5 The validity, construction, interpretation, and performance of this
Agreement shall be governed and construed by the laws of the Commonwealth of
Massachusetts, without regard to conflicts of law and choice of law rules. Any
suit or cause of action with respect to this Agreement may only be brought in
the Commonwealth of Massachusetts. English shall be governing language of this
Agreement.
11.6 LICENSEE agrees that any breach of this Agreement will cause MAKER
irreparable harm and that the damage will be difficult to determine and that
money damages alone will not be an adequate remedy. Therefore, MAKER shall have
the right to seek injunctive relief against any breach or threatened breach of
this Agreement.
11.7 If either party commences any action or proceeding to enforce this
Agreement or any right arising under this Agreement, the prevailing party
shall be entitled to recover from the other party the actual attorneys' fees,
costs and expenses (and all related fees, costs and expenses) incurred by it
in connection with such action or proceeding and in connection with the
enforcement of any judgment thereby obtained.
11.8 During the term of this Agreement and for a period of twelve (12)
months thereafter, LICENSEE shall permit MAKER or MAKER's authorized
representative, upon reasonable notice and during LICENSEE's normal business
hours, to inspect and audit LICENSEE's books and records relating to this
Agreement. In the event such audit determines that a discrepancy exists, and
the result of such discrepancy is that LICENSEE has paid at least [*]% less
than it is obligated to pay (either in the aggregate or with respect to any
particular period), LICENSEE shall immediately pay the excess amount of
royalties due and the cost of such audit. In the event of a discrepancy of
less than [*]% of what LICENSEE is obligated to pay, then MAKER shall bear the
cost of such audit, and the parties shall make adjustments, if any,
reflecting the results of such audit.
11.9 LICENSEE shall not transfer or assign any of its rights, or delegate
any of its obligations under this Agreement without MAKER's prior written
consent, which shall not be unreasonably withheld, except that LICENSEE may so
assign this Agreement, but only in its entirety, without MAKER's prior consent
to an acquiring or surviving entity to the business of LICENSEE by merger,
purchase or transfer of all or substantially all of LICENSEE's assets that the
acquiring party agrees in writing to be bound by this Agreement. This agreement
shall be binding on and inure to benefit of MAKER and LICENSEE and their
respective successors and (to the extent specified in any assignment)
assigns.
11.10 Software described or referenced in this Agreement are commercial
computer software programs developed at private expense. If LICENSEE is
acquiring the Software on behalf of any unit or agency of the U.S. Government,
the following shall apply: (a) For units of the Department of Defense:
RESTRICTED RIGHTS LEGEND: 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 Clause at DFARS 252.227-7013. (b) For any other unit or
agency: The Government's rights in the software and its documentation will be
as defined in Clause 52.227-
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19(c)(2) of the FAR. Contractor/manufacturer is Maker Communications, Inc., 00
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000.
11.11 LICENSEE shall comply with all applicable provisions of the Export
Administration Regulations of the United States Department of Commerce and all
similar laws and regulations. Upon written request from MAKER, LICENSEE shall
provide MAKER with all documentation and data necessary or desirable in
monitoring such compliance. LICENSEE agrees to defend, indemnify and hold MAKER
harmless against any liability arising from the failure of LICENSEE or
LICENSEE's customers to comply with such regulations.
IN WITNESS WHEREOF, the parties have executed this Agreement, inclusive of the
attached Exhibits, to be executed by their duly authorized representatives as
of the Effective Date.
MAKER COMMUNICATIONS, INC. SONOMA SYSTEMS, INC.
By: /s/ [ILLEGIBLE] By: /s/ Xxxxx Xxxxxx
------------------------ --------------------------
Name: Xxxxxxx [ILLEGIBLE] Name: Xxxxx Xxxxxx
---------------------- ------------------------
Title: Vice President & CFO Title: Vice President Finance
--------------------- -----------------------
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EXHIBIT A
SOFTWARE SCHEDULES
SOFTWARE DESCRIPTION
One copy of MAKER's "CIRCUIT SERVICES-5 AAL5 SAR MODULE" firmware
program in binary form ("Software") developed for use in connection with
MAKER's MXT3010 semiconductor device ("Device"), and MAKER's current
documentation therefor.
PERMITTED USES:
LICENSEE may make a reasonable number of copies of the Circuit
Services-5 AAL5 SAR Module firmware program for use solely in connection
with LICENSEE's "Access" or "Access Plus" product lines. Except for the
limited sublicensing rights specified below, LICENSEE may only use the
Software, as set forth in Section 1 of this Agreement, for its internal
use solely in connection with the Device. Subject to the royalty fee
specified below, if any, LICENSEE may reproduce and sublicense the
Software to LICENSEE's customers and LICENSEE's resellers/distributors
may sublicense the Software to their customers, for such customers
internal use only, provided (i) the Software is used solely in
connection with the Device (ii) the Device is integrated with LICENSEE's
product, (iii) LICENSEE includes MAKER's and/or its suppliers'
copyrights and all other proprietary legends on each copy, and (iv)
LICENSEE includes an end user software license agreement containing
terms and conditions substantially similar to those set forth in this
Agreement or MAKER's Software License Agreement, a copy of which is
attached hereto as Exhibit B. LICENSEE shall not sublicense or
distribute the Software as a standalone product. No other sublicense or
distribution rights are granted under this Agreement.
LICENSE FEES AND ROYALTIES:
License Fee: [*]
Royalties: [*]
MAINTENANCE AND SUPPORT FEES:
Annual Maintenance and Support for CircuitService-5 Binary Kit is:
$[*] per year.
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SOFTWARE DESCRIPTION
One copy of MAKER's "CIRCUIT SERVICES-1 AAL1 SDT MODULE" firmware
program in binary form ("Software") developed for use in connection with
MAKER's MXT3010 semiconductor device ("Device"), and MAKER's current
documentation therefor.
PERMITTED USES:
LICENSEE may make a reasonable number of copies of the Circuit
Services-1 AAL1 SDT Module firmware program for use solely in connection
with LICENSEE's "Access" or "Access Plus" product lines. Except for the
limited sublicensing rights specified below, LICENSEE may only use the
Software, as set forth in Section 1 of this Agreement, for its internal
use solely in connection with the Device. Subject to the royalty fee
specified below, if any, LICENSEE may reproduce and sublicense the
Software to LICENSEE's customers and LICENSEE's resellers/distributors
may sublicense the Software to their customers for such customers
internal use only, provided (i) the Software is used solely in
connection with the Device (ii) the Device is integrated with LICENSEE's
product, (iii) LICENSEE includes MAKER's and/or its suppliers'
copyrights and all other proprietary legends on each copy, and (iv)
LICENSEE includes an end user software license agreement containing
terms and conditions substantially similar to those set forth in this
Agreement or MAKER's Software License Agreement, a copy of which is
attached hereto as Exhibit B. LICENSEE shall not sublicense or
distribute the Software as a standalone product. No other sublicense or
distribution rights are granted under this Agreement.
LICENSE FEES AND ROYALTIES:
License Fee: [*]
Royalties: Royalties of $[*] per Module are bundled into the price of
the Module.
MAINTENANCE AND SUPPORT FEES:
Annual Maintenance and Support for CircuitService-1 Binary Kit is:
$[*] per year.
SOFTWARE DESCRIPTION
One (1) copy of MAKER's "LINKMAKER", software program in source code
form, ("Software") developed for use in connection with MAKER's MXT3010
semiconductor device ("Device"), and MAKER's current documentation
therefor.
LINKMAKER WARRANTY:
LINKMAKER IS PROVIDED "AS IS". MAKER MAKES NO WARRANTY (i) WITH RESPECT
TO, AND LICENSEE ACCEPTS SOLE RESPONSIBILITY FOR, THE SELECTION OF THE
SOFTWARE TO ACHIEVE LICENSEE'S INTENDED RESULTS, THE INSTALLATION AND
USE OF THE SOFTWARE, ANY RESULTS OBTAINED FROM SUCH USE, AND THE
SELECTION, USE OF AND RESULTS OBTAINED FROM ANY OTHER PROGRAM,
PROGRAMMING EQUIPMENT OR SERVICES OPERATED OR APPLIED IN CONNECTION WITH
THE SOFTWARE, (ii) THAT THE SOFTWARE WILL MEET LICENSEE'S TECHNICAL OR
OTHER REQUIREMENTS, (iii) THAT THE OPERATION OF THE SOFTWARE WILL BE
UNINTERRUPTED OR ERROR-FREE, (iv) THAT ANY OR ALL SOFTWARE DEFECTS WILL
BE CORRECTED, OR (V)
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL
EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, ITS MERCHANTABILITY OR ITS
FITNESS FOR A PARTICULAR PURPOSE. MAKER DOES NOT WARRANT THAT THE SOFTWARE IS
ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR IS COMPATIBLE WITH OTHER
HARDWARE OR SOFTWARE.
PERMITTED USES:
Except for the limited sublicensing rights specified below, LICENSEE may only
use the Software, as set forth in this Agreement, for its internal use solely
in connection with LICENSEE's "Access" or "Access Plus" product lines. To
the minimum extent required for use with the Device, LICENSEE may modify the
source code portions of the Software, including the documentation, to create
Derivative Works. Subject to the royalty fee specified below, if any,
LICENSEE may reproduce and sublicense the Derivative Works, in binary form
only, to LICENSEE's customers and LICENSEE's resellers/distributors may
sublicense the Derivative Works to their customers for such customers
internal use only, provided (i) the Software is used solely in connection
with the Device (ii) the Device is integrated with LICENSEE's product, (iii)
LICENSEE includes MAKER's and/or its suppliers' copyrights and all other
proprietary legends on each copy, and (iv) LICENSEE includes an end user
software license agreement containing terms and conditions substantially
similar to those set forth in this Agreement or MAKER's Software License
Agreement, a copy of which is attached hereto as Exhibit B. LICENSEE shall
not sublicense or distribute the Software as a standalone product. No other
sublicense or distribution rights are granted under this Agreement. LICENSEE
agrees and acknowledges that all right, title and interest in and to all
Derivative Works is and shall remain at all times with MAKER. Except as
specified in this Agreement, MAKER grants LICENSEE no other rights with
respect to any Derivative Works. LICENSEE shall include the following MAKER
copyright notice, including the applicable year(s) of the copyright, on all
Derivative Works, "Copyright-C- Maker Communications, Inc. 199_ All Rights
Reserved". Upon request from MAKER, LICENSEE shall provide MAKER with a copy
of all Derivative Works, including without limitation, any and all updates,
enhancements, patches, new versions and documentation, in both source code
and binary code form.
LICENSE FEES AND ROYALTIES:
License Fee: $[*] (per license)
Royalties: [*]
MAINTENANCE AND SUPPORT FEES:
Maintenance and Support is not available for LinkMaker.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL
EXHIBIT B
MAKER COMMUNICATIONS, INC.
SOFTWARE LICENSE AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND MAKER COMMUNICATIONS, INC.
("MAKER"). READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE OPENING THE
MEDIA PACKAGE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS
AGREEMENT, YOU SHOULD PROMPTLY AND IN ANY EVENT WITHIN THIRTY (30) DAYS OF
RECEIPT OF THE SOFTWARE, RETURN THE SOFTWARE UNOPENED, AND THE LICENSE FEE
YOU PAID FOR THE SOFTWARE WILL BE REFUNDED.
1. LICENSE GRANT:
1.1 MAKER grants you, subject to the terms and conditions of this
Agreement and payment of the applicable license fee, a non-transferable,
non-exclusive, license to use the enclosed MAKER software program and/or
portions thereof and the accompanying documentation (the "Software") as
follows:
1.2 You may (a) use the Software for your own internal use on a single
user client computer, but not a server, solely in conjunction with
MAKER's semiconductor devices, (b) transfer the Software from one of
your computers to another provided that it is used on only one computer
at a time, and that you remove any copies of the Software from the
computer from which it is being transferred, and (c) make one (1) copy
of the Software solely for backup or archival purposes provided you
reproduce and include all Software copyright and other proprietary
legends.
1.3 You may NOT (a) assign or transfer the Software or your rights or
obligations under this Agreement without the prior written consent of
MAKER, (b) distribute copies of the Software, in whole or in part, (c)
copy the hard copy documentation portion of the Software, (d) rent,
lease or otherwise transfer your rights to the Software, (e) translate,
reverse engineer, decompile or disassemble or otherwise alter the
Software (except to the extent, when required by law, and then only to
the minimum extent required by law) or (f) distribute (directly or
indirectly) any copies of the Software, or any direct product thereof,
to any country, entity, or destination prohibited by the United States
Government.
2. OWNERSHIP OF SOFTWARE AND DOCUMENTATION: The Software, including but
not limited to, any run-time program is and shall remain owned by MAKER
and/or its suppliers and is protected by United States copyright laws
and international treaty provisions. It is an express condition of this
Agreement that title to, ownership of, and all rights in patents,
copyrights, trade secrets and any other intellectual property rights in
the Software and any copy or part thereof is and shall remain in MAKER
and/or its suppliers.
3. TERM: This Agreement remains effective until terminated. You may
terminate it at any time by destroying the Software. This Agreement
shall automatically terminate without notice if you fail to comply with
any term or condition of this Agreement. Upon termination for any
reason, you shall promptly destroy the Software and all copies or
portions thereof in any form.
4. LIMITED WARRANTY: The Software is provided "AS IS". MAKER makes no
warranty (i) with respect to, and you accept sole responsibility for,
the selection of the Software to achieve your intended results, the
installation and use of the Software, any results obtained from such
use, and the selection, use of and results obtained from any other
program, programming equipment or services operated or applied in
connection with the Software, (ii) that the Software will meet your
technical or other requirements, (iii) that the operation of the
Software will be uninterrupted or error-free, (iv) that all Software
defects will be corrected, or (V) EXPRESS OR IMPLIED, WITH RESPECT TO
THE SOFTWARE, ITS MERCHANTABILITY OR ITS FITNESS FOR A PARTICULAR
PURPOSE. MAKER DOES NOT WARRANT THAT THE SOFTWARE IS ERROR FREE, WILL
OPERATE WITHOUT INTERRUPTION OR IS COMPATIBLE WITH OTHER HARDWARE OR
SOFTWARE.
5. INFRINGEMENT INDEMNITY: MAKER will, subject to Section 6 below, defend
you against a claim that the Software infringes a valid United States
patent or copyright. MAKER will pay resulting costs, damages, and
reasonable attorneys' fees finally awarded against you or agreed to in
any settlement, provided that (a) you promptly notify MAKER in writing
of any such claim, (b) MAKER has sole control of the defense and all
related settlement negotiations, and (c) you cooperate in the defense
and furnish all related evidence in or under your control. If such a
claim has occurred, or in MAKER's opinion is likely to occur, at MAKER's
option and expense, MAKER agrees to (a) procure for you the right to
continue using such Software, (b) replace or modify the Software so it
becomes non-infringing or (c) refund the license fee you paid for the
infringing Software. MAKER shall have no liability for any claim based
upon (a) the combination, operation, or use of the Software with
equipment, data, or software not furnished by MAKER, (b) modifications
to the Software not made by MAKER and/or (c) a version of the Software
other than the currently released version of the Software. This Section
5 sets forth MAKER's entire liability and sole obligation and your
exclusive remedy in the event of any claim of intellectual property
infringement.
6. LIMITATION OF LIABILITY: YOU SHALL NOT USE THE SOFTWARE IN ANY CASE
WHERE SIGNIFICANT DAMAGE OR INJURY TO PERSON, PROPERTY OR BUSINESS MAY
OCCUR IF ANY ERROR OCCURS. YOU EXPRESSLY ASSUME ALL RISK FOR SUCH USE.
IN NO EVENT SHALL MAKER BE LIABLE FOR INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF INCOME,
DATA, USE OR INFORMATION, ARISING FROM BREACH OF WARRANTY, BREACH OF
CONTRACT, NEGLIGENCE OR ANY OTHER LEGAL THEORY, EVEN IF MAKER HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE
LIABILITY OF MAKER EXCEED ONE THOUSAND DOLLARS ($1,000). For personal,
family or household use of the Software, some jurisdictions do not allow
the exclusion or limitation of incidental or consequential damages or
limitations on how long an implied warranty lasts so the limitation or
exclusions set forth above may not apply to you.
7. U.S. GOVERNMENT RESTRICTED RIGHTS: The Software described or referenced
in this Agreement are commercial computer software programs developed at
private expense. Use, duplication, and disclosure of the Software and
derivative works thereof to and by the United States Government are
subject to the provisions of the license agreement contained with or in
the software product as prescribed by the applicable provisions of the
DOD FAR supplement or similar regulations of the U.S. Federal agencies
applicable to the delivery of commercial software including the
restrictions set forth in FAR 52.22719(c)(2). The contractor/manufacturer
of the Software is: MAKER COMMUNICATIONS, Inc., 00 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxx, XX, XXX 00000
8. GENERAL TERMS: You agree to comply with all applicable laws and
regulations, including, without limitation, U.S. export and re-export
laws and regulations. The validity construction and performance of this
Agreement are governed by the laws of the Commonwealth of Massachusetts,
USA and suit or arbitration with respect to this Agreement may be
brought only in the Commonwealth of Massachusetts, USA If you have any
questions concerning this Agreement, you may contact MAKER at MAKER
COMMUNICATIONS, Inc., 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, XX, XXX 00000.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO
BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE
COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND MAKER AND
SUPERSEDES ANY EARLIER PROPOSAL OR PRIOR ARRANGEMENT, WHETHER ORAL OR
WRITTEN, OR ANY OTHER COMMUNICATIONS BETWEEN YOU AND MAKER RELATIVE TO THE
SUBJECT MATTER OF THIS AGREEMENT. ANY MODIFICATIONS, CHANGES OR REVISIONS TO
THIS AGREEMENT MUST BE IN WRITING AND SIGNED BY DULY AUTHORIZED
REPRESENTATIVES OF EACH PARTY.
