EXHIBIT 10.10
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY A TRIPLE ASTERISK
(***). THE CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.]
HELLOSOFT TECHNOLOGY LICENSE AGREEMENT
--------------------------------------
FOR RIM SEMICONDUCTOR
---------------------
This License Agreement (the "Agreement") is made and entered into as of
February 3, 2006 (the "Effective Date") between HelloSoft, Inc., a Delaware
corporation, having a principal place of business at 0000 Xxxxxxx Xxxxx, Xxxxx
000, Xxx Xxxx, Xxxxxxxxxx 00000 ("HelloSoft"), and Rim Semiconductor, a Delaware
corporation having a principal place of business at 000 XX 000xx Xxxxxx, Xxxxx
000, Xxxxxxxx, XX 00000 ("Licensee").
Whereas HelloSoft is in the business of developing, designing,
licensing and distributing software technology products;
Whereas Licensee wishes to obtain certain license rights from HelloSoft
to design, manufacture and sell chips that contain HelloSoft object code.
NOW THEREFORE, in consideration of the parties' mutual covenants as set
forth below, HelloSoft and Licensee agree as follows:
1. DEFINITIONS
1.1. "AFFILIATES" means a corporation or any other legal entity,
including subsidiaries or related companies, the majority of
whose shares or other securities entitled to vote for
election of directors (or managing authority) is now or
hereafter controlled by Licensee either directly or
indirectly.
1.2. "CONFIDENTIAL INFORMATION" means and the terms and
conditions of this Agreement, and any information, technical
data, or know-how related to any aspect of either party's
business and disclosed by such party (the "disclosing
party") to the other party (the "receiving party")
including, but not limited to, technologies, research,
products, proposals, software, services, development,
inventions, processes, designs, drawings, engineering,
marketing, customer lists and finances, and which is either
marked "confidential" or "proprietary" or, if disclosed
orally or by visual inspection, is designated as
confidential or proprietary at the time of disclosure and
confirmed in a writing so marked within twenty (20) days
following disclosure.. Confidential Information does not
include any such information, technical data, or know-how
which (i) is or becomes publicly available without the
breach of this Agreement by the y receiving party; (ii) is
released by written consent of the disclosing party for
disclosure by the receiving party; (iii) is known by the
receiving party prior to the disclosure by the disclosing
party; (iv) is rightfully received by the receiving party
from a third party who has the legal right to disclose it,
without an obligation to keep such information confidential;
or (v) is independently developed by the receiving party's
employees or the employees of a party's Affiliate not having
access to such information.
1.3. "INTELLECTUAL PROPERTY" means patent rights (including
patent applications and disclosures), copyrights, trade
secrets, know-how and any other intellectual property rights
recognized in any country or jurisdiction of the world, but
does not mean trademark, trade names, logos, or service
marks.
1.4. "LICENSED TECHNOLOGY" means the HelloSoft proprietary
software and related documentation described in Exhibit A of
this Agreement.
1.5. "LICENSED PRODUCT" means a product of Licensee or an
Affiliate of Licensee, as described in Exhibit E of this
Agreement, containing the Licensed Technology.
1.6. "DELIVERABLES" means the items to be delivered to Licensee
by HelloSoft, as set forth in Exhibit B of this Agreement.
1.7 "USE" means the use by Licensee of the Licensed Technology
to make a unique version of a Licensed Product with respect
to either the chip or the operating system. The number of
USES shall mean the number of such versions that are made by
or for Licensee.
2. GRANT OF LICENSE
2.1. LICENSE TO USE LICENSED TECHNOLOGY Subject to the terms and
conditions of this Agreement and payment to Hellosoft as per
Exhibit C, HelloSoft hereby grants to Licensee, and Licensee
accepts, a worldwide, non sub licensable, nonexclusive,
nontransferable, non-assignable (except as set forth in
ss.11.6 of this Agreement) license to demonstrate, display,
develop, make, have made, sell and lease a Licensed Product
containing the Licensed Technology in object code form
("Development and Manufacturing Right") for telephony
wireline applications.
2.2. DOCUMENTATION HelloSoft will provide to Licensee the
documentation set forth in Exhibit B hereto relating to the
Licensed Technology, in electronic format. HelloSoft hereby
grants to Licensee a nonexclusive, nontransferable,
worldwide license to copy, modify, have modified, and
distribute internally and to its Affiliates, in whole or in
part, the documentation only in connection with the
development, manufacture and sale of the Licensed Product.
2.3. LICENSEE MATERIALS. Licensee will provide to Hellosoft the
material as set forth in Exhibit F for HelloSoft's use in
delivering to Licensee the Deliverables as per Exhibit B
(the "Licensee Materials"). Licensee grants to HelloSoft a
royalty-free, non-exclusive, revocable license to use,
reproduce and modify the Licensee Materials solely for the
purpose of performing its development and delivery
obligations to Licensee hereunder. The Licensee Materials
are and shall remain the sole and exclusive property of
Licensee. No other rights or licenses to use such Licensee
Materials or any intellectual property of Licensee are
granted hereunder.
3. PAYMENTS AND DELIVERY
3.1. LICENSE FEE AND ROYALTIES: In consideration of the licenses
granted to Licensee and the Deliverables provided to
Licensee hereunder, Licensee will pay HelloSoft the license
fee, non-recurring engineering charges ("NRE") and royalties
as set forth in Exhibit C. HelloSoft will deliver to
Licensee, in electronic media, the Deliverables set forth in
Exhibit B. Royalties shall be payable in accordance with
Section 4.
3.2. TAXES Licensee will be responsible for the payment of all
export, excise, sales, use, property and other taxes based
upon the transactions under this Agreement or the fees paid
hereunder, other than taxes imposed upon or measured by
HelloSoft's net income.
4. REPORTS AND AUDITS
4.1 REPORTS Royalty payments will accrue during the Licensee
fiscal quarters in which the Licensed Products are shipped.
On or before the thirtieth (30th) day following the close of
each Licensee fiscal quarter Licensee will deliver to
2
HelloSoft a royalty report which states: (a) the number of
all units of the Licensed Product for which royalties
accrued during such fiscal quarter by product type; and (b)
the total amount of the royalties payable to HelloSoft. The
report shall be accompanied by the payment of the royalties
accrued during the quarter.
4.2 AUDIT For a period of three (3) years after each payment of
royalties, Licensee will maintain such accurate books and
records relating to Licensee's performance under this
Agreement as will be sufficient to confirm Licensee's proper
payment of such royalties due under this Agreement and
compliance with Sections 2.1 through 2.2. Licensee will be
responsible for reporting and payment to HelloSoft for all
Licensed Product, by product type, shipped by it or any of
its Affiliates, or on their behalf. Licensee will permit a
nationally known, independent accounting firm reasonably
acceptable to Licensee, under a confidentiality agreement
with Licensee, to audit such books and records as may
reasonably be required to verify proper payment of royalties
due under this Agreement and compliance with Sections 2.1
through 2.2, at such times as HelloSoft may reasonably
request, upon reasonable written notice. All such records of
Licensee will be considered Licensee's Confidential
Information. The accounting firm shall provide to HelloSoft
only such information as is necessary to calculate the
amount of royalties due hereunder and verify compliance with
Sections 2.1 through 2.2, and shall provide Licensee with a
copy of any report or written document provided to HelloSoft
in connection with such audit. Licensee agrees to provide,
and agrees to cause its Affiliates to provide, reasonable
assistance, without charge, to the independent accounting
firm in conducting the audit. HelloSoft will pay the cost of
audits unless any audit reveals that Licensee has underpaid
royalties by more than seven and one-half percent (7.5%) of
the royalties owed, in which case Licensee will bear all
expenses reasonably incurred by HelloSoft in connection with
the audit. Audits will not unreasonably interfere with
Licensee's business activities. Unless an audit reveals an
underpayment of more than seven and one-half percent (7.5%)
of the royalties owed, Licensee and its Affiliates will not
be required to submit to any audit more than once during any
twelve (12) month period.
5. MAINTENANCE AND SUPPORT
5.1. MAINTENANCE AND SUPPORT HelloSoft will provide annual
maintenance and support per the terms shown in Exhibit D.
6. OWNERSHIP RIGHTS
6.1. OWNERSHIP HelloSoft will retain all ownership, right, title,
and interest (including, without limitation, all copyrights,
patents and other intellectual property rights) in and to
the Licensed Technology and the Deliverables. Licensee
and/or its Affiliates will have and retain all ownership,
right, title and interest (including, without limitation,
all copyrights, patents and other intellectual property
rights) in and to the Licensed Product, subject to
HelloSoft's underlying interest in the Licensed Technology.
6.2. PROPRIETARY NOTICES All copies of the Deliverables made by
Licensee will contain HelloSoft's proprietary notices as
established by guidelines promulgated from time to time by
HelloSoft, and Licensee will not remove any copyright or
other proprietary notices contained in the Hellosoft
Deliverables and/or Licensed Technology.
6.3. TRADEMARKS Except as provided in this Agreement, Licensee
may not use HelloSoft's name, logo, or trademarks without
HelloSoft's prior written consent, which shall not be
unreasonably withheld.
6.4. RIGHT TO LICENSE Licensee hereby expressly acknowledges and
affirms Hellosoft's assertion of a right to license the
Licensed Technology. Accordingly, Licensee will not at any
time, and Licensee will ensure that its Affiliates will not
at any time, directly or indirectly, oppose the grant of,
dispute the validity of or cooperate in any suit or
proceeding which challenges or disputes any proprietary
rights of HelloSoft in the Licensed Technology or HelloSoft
in the licensing of the Deliverables, or any portion
thereof. The foregoing shall not be construed as limiting
Licensee's right to indemnification under Section 8.
3
7. REPRESENTATIONS AND WARRANTIES
7.1. HELLOSOFT REPRESENTATIONS HelloSoft represents and warrants
to Licensee only that (a) it possesses the right and
capacity to enter into this Agreement; and (b) the Hellosoft
Deliverables will operate in accordance with the
specification as described in Exhibit B.
7.2. LICENSEE REPRESENTATIONS Licensee represents and warrants
that: (a) it possesses the right and capacity to enter into
this Agreement; and (b) it will comply with the guidelines
of Hellosoft as per ss.6.2 or as reasonably modified by
Hellosoft from time to time.
7.3. DISCLAIMER EXCEPT AS PROVIDED IN ss.7.1 HELLOSOFT MAKES NO
WARRANTY OF ANY KIND WITH REGARD TO THE LICENSED TECNOLOGY,
AND THE DELIVERABLES. HELLOSOFT EXPRESSLY DISCLAIMS ANY
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, WHETHER ARISING IN LAW, CUSTOM, CONDUCT, OR
OTHERWISE.
8. INDEMNIFICATION AND LIMITATION OF LIABILITY
8.1. HELLOSOFT INDEMNIFICATION HelloSoft agrees to defend or
settle at HelloSoft's own expense and under HelloSoft's sole
control any claim, suit or proceeding brought by a third
party against Licensee or an Affiliate of Licensee to the
extent that such claim, suit or proceeding is based upon any
claim of intellectual property infringement with respect to
Licensed Technology, subject to the limitations herein.
HelloSoft will be relieved of the foregoing obligations
unless Licensee (i) notifies HelloSoft promptly in writing
of such claim, suit or proceeding, and (ii) gives HelloSoft
information and assistance with respect to any such claim,
suit or proceeding. HelloSoft will not enter into a
settlement agreement without Licensee's prior written
consent, which consent shall not be unreasonably withheld.
If the Licensed Technology, or any part thereof, is finally
adjudicated to be, or in HelloSoft's opinion may become, the
subject of any claim, suit or proceeding for infringement of
any patent, copyright, trade secret, or other intellectual
property rights of a third party, or if the distribution or
use of the Licensed Product, or any part thereof, is
enjoined, then HelloSoft will, at HelloSoft's option and
expense: (i) procure for Licensee and its Affiliates and
Customers the right to distribute and/or use the Licensed
Product under such proprietary rights; or (ii) suitably
modify the Licensed Technology while maintaining
functionality and performance equivalent to the Licensed
Technology originally delivered hereunder, or (iii) refund
the license fees paid therefor by Licensee upon Licensee's
return of all materials related to the Licensed Technology.
HelloSoft will not be liable for any costs or expense
incurred by Licensee in connection with the claim, suit or
proceeding without HelloSoft's prior written authorization,
such authorization not to be unreasonably withheld.
HelloSoft assumes no liability in connection with, arising
from or resulting from:: (x) any combination of the Licensed
Technology with other technology or products if such
liability would not have arisen but for the combination; or
(y) any modification of the Licensed Technology or
Documentation, unless such modification was made by
HelloSoft pursuant to specifications and designs drafted by
HelloSoft, if such liability would not have arisen but for
such modification.
8.2. LICENSEE INDEMNITY Licensee agrees to indemnify and hold
HelloSoft harmless and to defend and settle at Licensee's
expense under Licensee's sole control and pay all damages,
liability, expenses (including but not limited to reasonable
attorney's fees), resulting from any claim, suit or
proceeding brought against HelloSoft by a third party
arising out of a cause set forth in Section 8.1 (x) or (y).
Licensee will be relieved of the foregoing obligations
unless HelloSoft (i) notifies Licensee promptly in writing
of such claim, suit or proceeding, and (ii) gives Licensee
information and assistance with respect to any such claim,
suit or proceeding. Licensee will not enter into a
settlement agreement without HelloSoft's prior written
consent, which consent shall not be unreasonably withheld.
4
8.3. EXCLUSIVE REMEDY THE FOREGOING PROVISIONS OF THIS ss.8 STATE
THE ENTIRE LIABILITY AND OBLIGATIONS OF EACH PARTY AND THE
EXCLUSIVE REMEDY OF EACH PARTY WITH RESPECT TO ANY ALLEGED
INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT BY THE LICENSED
TECHNOLOGY.
8.4. LIMITATION UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE
ENTITLED TO RECOVER FROM THE OTHER ANY INDIRECT,
CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, WHETHER IN
CONTRACT OR IN TORT, EVEN IF THE PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT, WITH THE
EXCEPTION OF A BREACH OF THE LICENSING RESTRICTIONS IN
SECTIONS 2.1 THROUGH 2.2 AND/OR THE CONFIDENTIALITY
OBLIGATION IN SECTION 9, SHALL HELLOSOFT'S OR LICENSEE'S
TOTAL LIABILITY UNDER THIS AGREEMENT OR FOR BREACH OF THIS
AGREEMENT, WHETHER BASED UPON CONTRACT, INDEMNIFICATION,
TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT
LIABILITY OR ANY OTHER LEGAL THEORY, EXCEED THE LICENSE FEES
PAID (AS TO HELLOSOFT'S LIABILITY) OR PAID AND PAYABLE (AS
TO LICENSEE'S LIABILITY) BY LICENSEE TO HELLOSOFT HEREUNDER.
NOTWITHSTANDING, SECTION 8,1, HELLOSOFT SHALL HAVE NO
LIABILITY FOR ANY THIRD-PARTY'S CLAIM IN RESPECT OF THE
PATENTS OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS OR
COPYRIGHTS THAT (i) CONSTITUTE ITU-T OR ETSI OR OTHER
STANDARDS-BASED RECOMMENDATIONS, AND (ii) ARE ESSENTIAL AND
INEVITABLE TO SATISFY THE SAID RECOMMENDATIONS, AND (iii)
ARE RELATED TO ITEMS G.723.1 AND G.729AB OF THE DELIVERABLES
SET FORTH IN EXHIBIT B. EACH PARTY ACKNOWLEDGES THAT THE
FOREGOING WAIVER SERVES AS A MATERIAL INDUCEMENT FOR IT TO
ENTER INTO THIS AGREEMENT.
9. CONFIDENTIALITY
9.1. RESTRICTIONS Each party (i) agrees not to disclose
Confidential Information given to it by the other party to
any person, real or legal (including, without limitation,
the receiving party's employees), except as necessary for
the other party to perform its obligations and/or exercise
its rights under this Agreement or as required by court
order; (ii) will require its employees having access to
Confidential Information and any third party to whom
disclosure of Confidential Information is permitted and
necessary hereunder to sign or already have signed a
confidentiality agreement containing provisions
substantially similar to this Agreement; (iii) will exercise
the same degree of care to safeguard the confidentiality of
such Confidential Information as it would exercise in
protecting the confidentiality of similar property of its
own (but in no event less than is standard in the industry);
(iv) agrees to use its diligent efforts to prevent
inadvertent or unauthorized disclosure, publication or
dissemination of any Confidential Information; and (v)
agrees not to use the Confidential Information for any
purpose not authorized hereunder. Confidential Information
will be maintained in confidence for a period of five (5)
years from the date of disclosure, except the Confidential
Information of HelloSoft incorporated into the Deliverables
which will be maintained in confidence in perpetuity. Upon
termination of this Agreement, each party will promptly
deliver to the other party all Confidential Information
provided by that party during the term of this Agreement.
Licensee and HelloSoft will each be entitled to such
remedies as may be available against the other under the
applicable law for any loss or damage the other may sustain
as a result of the wrongful use or disclosure by the other
party (or any employees, contractors, or permitted assignees
of the other party or Licensee's Affiliate) of its
Confidential Information.
5
9.2. UNAUTHORIZED DISCLOSURES Each party will notify the other of
any actual or suspected unauthorized use or disclosure of
Confidential Information or infringement of any Confidential
Information of which such party has knowledge, and will
reasonably cooperate with the other party in the
investigation and prosecution of such unauthorized use,
disclosure, or infringement. In the event of unauthorized
use of confidential information by a party of this
agreement, such party will take all reasonable steps to
mitigate the harm resulting from such use or disclosure.
9.3. RELEASE TO LICENSEE'S CUSTOMERS The parties will mutually
agree upon a subset of the Confidential Information which
may be disclosed to Licensee's customers, and used by such
customers, for the sole purpose of helping such customers
design Licensed Product into their end products, provided
that: (a) such disclosure is subject to the terms and
conditions set forth in ss.9.1 and ss.9.2; and (b)
Licensee's customers will have no right to copy (except as
necessary for customers to carry out such design),
distribute or further disclose such Confidential
Information. Licensee will require all such customers to
execute written confidentiality agreements with Licensee
that, without limitation, contain the foregoing terms and
conditions, and impose on such customers the obligations and
restrictions imposed on Licensee in this ss.9, and designate
Hellosoft as a third-party beneficiary of such customer
obligations.
10. TERM AND TERMINATION
10.1. TERM This Agreement will commence on the Effective Date and
continue for a four (4)- year term unless the Agreement is
terminated earlier under the provisions of this ss.10 (the
"Term"). In the event of termination of this Agreement due
to expiry of the Term, Licensee shall have the right in
perpetuity to continue shipping and supporting those USES of
the Licensed Product as to which the License Fees per
Exhibit C had been paid to HelloSoft prior to the time of
termination due to expiry of the Term, subject to the
Licensee continuing to comply with ss.3, ss.4 and ss.9,
including the reporting and payment of royalties and
continuing in perpetuity to maintain in confidence the
Confidential Information of Hellosoft incorporated into the
Deliverables.
10.2. TERMINATION FOR CAUSE If either party defaults in the
performance of any material provision of this Agreement,
then the non-defaulting party shall give written notice to
the defaulting party that if the default is not cured within
thirty (30) days, (or, if it cannot be cured in that time,
the party has not commenced remedial procedures reasonably
satisfactory to the non-breaching party), then the Agreement
will automatically terminate at the end of such period. Any
breach of the provisions in ss.9 will be considered
breaches, which cannot be cured and may be the basis for the
immediate termination of this Agreement.
10.3. EFFECT OF TERMINATION FOR CAUSE In the event this Agreement
is terminated pursuant to ss.10.2 due to Licensee's breach,
all rights granted to Licensee with respect to the Licensed
Technology, which had been granted pursuant to this
Agreement, will then be terminated.
10.4. SURVIVAL The provisions of ss.ss.1, 6, 7, 8, 9, 10 and 11
will survive any termination of this Agreement.
10.5. ACCELERATION OF PAYMENTS In the event that this Agreement
is terminated, the payment date of all payments that already
have accrued will be accelerated and such payments will
become immediately due and payable as of the date of
termination.
10.6. TERMINATION NOT EXCLUSIVE REMEDY Except as expressly
limited by this Agreement, termination of this Agreement
will be without prejudice to any other remedy which may be
available to a party due to default of this Agreement.
Violation of obligations under this Agreement may cause
irreparable harm and damage, which may not be recovered at
law, and remedies for breach of this Agreement may be
awarded in equity through injunctive relief by any court of
competent jurisdiction.
6
11. MISCELLANEOUS
11.1. RELATIONSHIP The relationship between the parties will be
that of independent contractors. Nothing contained herein
will be construed to imply a joint venture, principal or
agent relationship, or other joint relationship, and neither
party will have the rights, power or authority to create any
obligation, express or implied, on behalf of the other.
11.2. GOVERNING LAW This Agreement shall be governed in all
respects by the substantive laws of the State of California,
United States of America, exclusive of its conflict of laws
rules, as applied to agreements entered into in California
between California residents. The parties specifically agree
that the provisions of the United Nations Convention on the
International Sales of Goods are excluded.
11.3. ARBITRATION In the event of any dispute under this
Agreement, the parties expressly agree to submit the
grievance to binding arbitration, provided that Hellosoft
may also seek equitable relief to protect its Intellectual
Property from any court of competent jurisdiction, in
addition to or in lieu of arbitration. A single arbitrator
experienced in technology license agreements who is mutually
acceptable to both parties shall hold the arbitration. The
decision of the arbitrator shall be binding upon the
parties. The arbitrator shall apply California Law. The
arbitration will be conducted in Santa Xxxxx County,
California. Both parties shall share the fees of the
arbitrator equally. Any award rendered by the arbitrator may
be entered for enforcement, if necessary, in any court of
competent jurisdiction, the party against whom enforcement
is sought bearing the costs and expenses, including
attorney's fees, related to such entry and enforcement.
11.4. WAIVER Failure by any party to enforce any of its rights
under this Agreement will not be deemed a waiver of any
right which that party has under this Agreement.
11.5. SEVERABILITY Should any provisions of this Agreement
contravene any law or valid regulation of any government
having jurisdiction over the parties, then such provision
will be automatically terminated and performance thereof by
the parties waived, and all other provisions of this
Agreement will continue in full force and effect.
11.6. ASSIGNMENT Licensee may not sell, transfer, assign or
subcontract any right or obligation under this Agreement
without the prior written consent of HelloSoft, which
consent shall not be unreasonably withheld.
11.7. PUBLICITY The parties may (with mutual consent) issue a
joint press release or information to the general public
regarding this Agreement. Before such joint press release,
neither party will disclose the terms and conditions of this
Agreement. At all times the licensing details and fees
involved in this Agreement will remain confidential.
Notwithstanding the restrictions of Section 9, the parties
may disclose the existence of this Agreement and the license
rights granted hereunder, but no other terms and conditions
hereof, solely for purposes of marketing and selling their
own respective products.
11.8 NOTICES All notices, requests, consents and other
communications hereunder will be in writing and delivered
personally, by courier such as DHL or Federal Express, by
mail, or by facsimile (with facsimiles to be promptly
confirmed in writing). All such written communications
delivered by mail will be mailed, postage prepaid, either by
certified or registered, first-class mail to the parties at
their respective addresses as set forth below, subject to
the right of either party to change its address by
delivering written notice to the other. Such notices will be
deemed to be effective upon five (5) days following the date
of mailing or upon receipt if by facsimile or personal
delivery.
7
11.9 EXPERT ADVICE Each party has consulted such legal,
financial, technical, or other expert it deems necessary or
desirable before entering into this Agreement. Each party
represents and warrants that it has read, knows,
understands, and agrees with the terms and conditions of
this Agreement. Neither party has relied upon any oral
representation of the other party in entering into this
Agreement. All discussions, estimates or projections
developed by a party during the course of negotiating the
terms and conditions of this Agreement are by way of
illustration only, and, unless specifically contained in
this Agreement or one of its Exhibits, are not binding or
enforceable against the other party in law or in equity.
11.10 EXPORT The parties agree that they shall at all times act
in conformity with all applicable laws and regulations,
including but not limited to, the U.S. export laws.
11.11 FORCE MAJEURE Except for payment of moneys due under this
Agreement, nonperformance of either party will be excused to
the extent that performance is rendered impossible by fire,
flood, governmental acts or orders or restrictions, failure
of suppliers, or any other reason where failure to perform
is beyond the control and not caused by the negligence of
the non-performing party.
11.12 ENTIRE AGREEMENT; This Agreement constitutes the complete
understanding and agreement of the parties and supersedes
all prior and contemporaneous negotiations, understandings
and agreements, oral or written, with respect to the subject
matter of this Agreement. Any modification or amendment of
any provision of this Agreement will be effective only if in
writing and signed by an authorized representative of both
parties.
IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized representatives.
"Licensee" HelloSoft
By: Xxxx Xxxxx By: Xxxxxxx Xxxxxxxxxx
Title: President & CEO Title: CEO
Signature: /s/ Xxxx Xxxxx Signature: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------- ----------------------
8
EXHIBIT A
---------
LICENSED TECHNOLOGY
-------------------
IINTEGRATED VOIP SUITE FOR ARM926EJ-S BASED PROCESSOR RUNNING ON
EMBEDDED LINUX OS.
o Voice codecs: XXX-X X.000, X.000X/X, G.723.1, G.726
o Lost Packet Compensation unit (PLC): ITU-T G.711 Appendix I
o VAD/CNG: ITU-T G.711 Appendix II
o ITU-T G.168 compliant Line Echo Canceller (16/32 ms Tail Length)
o Adaptive Jitter Buffer and Packet Play out unit.
o Telephony Modules: DTMF Generator/ Detector, Call Progress Tone
Generator/Detector,
o RTP/RTCP: IETF RFC 3550 and 3551
o In-Band Signaling: IETF RFC 2833 RTP Payload for DTMF digits, telephony
tones and signals.
o SIP Stack and User Agent for VoIP Terminals based on IETF XXX 0000,
Session Description protocol (SDP) RFC 2327
o Hellosoft's Media processing Framework, Call Control Manager, VoIP
System level Framework, OA&M, DIM, OS Abstraction Layer, Application
Interface Layer.
EXHIBIT B
---------
HELLOSOFT DELIVERABLES
----------------------
(B-1)
Object code for the modules set forth below for the ARM9E architecture running
Linux OS verified on Hellosoft's ARM926EJS-based VoIP reference platform:
o ITU-T G.711: Pulse code modulation (PCM) of voice frequencies.
o ITU-T G.711 Appendix I: A high quality low-complexity algorithm for
packet loss concealment with G.711 (PLC).
o ITU-T G.711: Appendix II: A comfort noise payload definition for ITU-T
G.711 use in packet-based multimedia communication systems (VAD/CNG).
o ITU-T G.729: Annex A and Annex B, Coding of speech at 8 kbit/s using
conjugate structure algebraic-code-excited linear-prediction
(CS-ACELP), silence compression scheme for G.729 optimized for
terminals conforming to recommendation V.70.
o ITU-T G.723.1: Dual Rate Speech Coder for Multimedia Communications
Transmitting at 5.3 and 6.3 kbit/s.
o ITU-T G.726: 40, 32, 24, 16 kbit/s adaptive differential pulse code
modulation (ADPCM)
o ITU-T G.168 compliant Line Echo Canceller (16/32 ms Tail Length)
o Adaptive Jitter Buffer and Packet Play out Unit
o DTMF Generator/Detector
o Call Progress Tone Generator/Detector
o Media processing Framework.
o RTP/RTCP: IETF RFC 3550 and 3551 Specification
o IETF RFC 2833 RTP Payload for DTMF digits, telephony tones and signals.
o SIP Stack based on IETF XXX 0000
o RFC 2327 Session Description protocol (SDP)
o Call Control Manager
o Hellosoft's VoIP System level Framework, OA&M and DIM
o OS Abstraction Layer
o Application Interface Layers
9
(B-2) Deliverables for NRE work:
None.
EXHIBIT C
---------
LICENSE FEES AND ROYALTY
------------------------
I. ***
II. ***
All fees and royalties paid are non-refundable.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
EXHIBIT D
---------
MAINTENANCE AND SUPPORT AGREEMENT
---------------------------------
Licensee will pay Hellosoft an annual maintenance fee of *** for the
first year by 4/15/06. Licensee will receive annual maintenance from
HelloSoft which includes updates as available, bug fixes and 100 hours
of email/telephone support for an initial twelve month period
commencing on the Effective Date . Licensee will pay annual maintenance
for each additional twelve month period thereafter by paying the annual
maintenance fee of *** by each anniversary of the Effective Date..
Licensee may purchase additional technical support at the following
rates:
1. US-based support: ***.
2. India-based support: ***.
Any reasonable expenses incurred by HelloSoft in connection with
Licensee requested travel for HelloSoft technical support will be
reimbursed by the Licensee, provided that Licensee approves such
expenses in writing in advance.
All fees paid are non-refundable.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
EXHIBIT E
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LICENSED PRODUCT
----------------
Licensee's Embarq 30 semiconductor chip, (using ARM9E processor core) running
the Linux operating system incorporating the Licensed Technology in object code
form for VDSL applications.
EXHIBIT F
---------
LICENSEE MATERIALS
------------------
Following items will be delivered by Licensee to Hellosoft as per schedule
below:
None
